Although drafting and implementing uniform global policies in each country where multinational companies conduct business likely is preferable from an administrative perspective, such policies are not always lawful or culturally sensitive across jurisdictions. Indeed, such uniformity can be problematic, and company policies often should be localized. This requires analyzing the local requirements in each country to determine if any changes can be made to accommodate local law without compromising the purpose and integrity of the policy.

The Global vs. Local Debate

Anti-fraternization and workplace romance policies illustrate this global versus local tension because these policies can be culturally abnormal in some countries, even where there is no law being offended, such as the United Kingdom. In addition, favoritism is a significant risk when multinational companies implement and enforce anti-fraternization and workplace romance policies globally. This is especially relevant in the context of "management-subordinate relationships." Romantic relationships between management and non-management employees have the potential not only to create the appearance of favoritism and employee dissension, but also to increase the risk of potential claims of sexual harassment. To protect against these possible pitfalls, multinational companies may want to adopt an anti-fraternization or workplace romance policy that disallows supervisors from having a reasonable expectation of privacy when pursuing intimate relationships with subordinates.

While U.S. companies often will consider adopting a global anti-fraternization or workplace romance policy, these policies are problematic in some jurisdictions, such as France, and are uncommon and discouraged in other countries, such as Italy, as they are viewed as a violation of employees' privacy. Specific to France, employers may not interfere with employees' freedoms if such interference is neither justified nor proportionate, and an employee cannot be dismissed based on an event related to his or her private life, unless favoritism were uncovered or the romantic relationship had an adverse impact on the business. Further complicating the issue, in other countries different classes of employees may be entitled to various rights. In India, for example, workmen enjoy far greater rights as compared to non-workmen and, therefore, it likely is more difficult to terminate a workman's employment in the event of breaching an anti-fraternization and workplace romance policy. Germany provides yet another example where the law differentiates between employment levels. While a senior executive may be prohibited from having intimate relationships with subordinates whose professional career can be directly and significantly influenced, restricting a standard professional employee's relationships may not be justified by a prevailing company interest.

Blending Work and Non-Work Time and Relationships

Multinational companies typically consider implementing anti-fraternization and workplace romance policies because employees spend so much of their productive time at work and interacting with colleagues. Work and non-work time often intersects and work life inescapably becomes a part of, even a significant part of, social life. Statistics evaluating office romance have shown that over one in four employees report that they are open to engaging in romantic relationships with coworkers. In addition, 22% of married couples in the U.S. report meeting at work. These figures demonstrate the need to draft written policies that provide employees with the company's rules on anti-fraternization and workplace romance.

Office romances carry all the potential problems and rewards of typical relationships, except with an added layer of risk. Closely blending the professional and personal in such an intense way may invite personal and corporate liability. Such an atmosphere may be rife with gossip and rumors, which disrupts professional culture. While these conflicts stem from a personal relationship, they can affect a business as well, putting office romances squarely in the scope of management's purview.

Workplace Relationships and #MeToo

Drafting culturally sensitive anti-fraternization and workplace romance policies is especially important, and nuanced, following #MeToo and the reactions that #MeToo evoked globally. The proliferation, or lack thereof, of the #MeToo movement has depended on countries' specific political climate and distinct legal and cultural factors. While #MeToo has gained significant momentum in the United States that resulted in swift, tangible consequences for individuals accused of impropriety, this has not always been the case outside the United States. For example, in India and Italy, #MeToo has not been embraced as broadly or sympathetically and faces obstacles. Again, the international response to #MeToo highlights cultural values, which in part are based on countries' legal history protecting against and responding to workplace sexual harassment, as well as the role that women have played historically in a given society.

While sexual harassment cases have arisen out of workplace misconduct for decades, #MeToo has had a global impact on how these cases are perceived and addressed. Because employers must focus on protecting their brand and reputation, which is increasingly challenging in the era of social media proliferation, multinational companies must understand cultural and legal differences when addressing individual sexual harassment complaints and conducting internal investigations. Practically speaking, in light of #MeToo and responses to claims of sexual harassment in the workplace, an anti-fraternization and workplace romance policy should be drafted with the company's sexual harassment policies in mind and should be located near the sexual harassment policy because these statements inevitably are intertwined.

Potential Solutions

As the #MeToo movement continues to affect the workplace, multinational companies must develop strategies to confront the challenges imposed by interoffice relationships while still respecting local culture and legal principles. Balancing these two possibly competing interests is challenging, but employers must keep in mind that even previously consensual relationships can disrupt the workplace if the relationship were to deteriorate.

Generally, anti-fraternization and workplace romance policies are beneficial to employers and are helpful tools to create and maintain a safe and collegial working environment. Furthermore, signing such a policy may be in an executive's best interest, especially a senior executive's best interest, to maintain his or her reputation in light of the #MeToo movement, widespread social media use and the public's heightened attention to claims of workplace harassment. As noted above, however, some jurisdictions, such as France, protect individual privacy over the business interest that employers may have in rolling out anti-fraternization and workplace romance policies.

Thinking globally, anti-fraternization and workplace romance policies likely are a very workable solution and a pragmatic response to the #MeToo movement in many jurisdictions. Multinational employers may consider requiring senior executives, in particular, to disclose the existence of prior and/or current office romantic relationships, especially with subordinates, when employers have a legitimate interest in such disclosure to eliminate any suspicion of undue preferential treatment, to protect business relations and to avoid disturbing company morale. In many European countries, the employer's interest in and rationale for the disclosure must supersede that of the employee's right to privacy. In addition, and as a best practice, an anti-fraternization or workplace romance policy can be implemented for deterrent effect for the purpose of reducing the likelihood that employees engage in romantic relationships at work.

In the end, implementing a one-size-fits-all approach to global policies generally is shortsighted and a more nuanced approach is preferable. Specific to anti-fraternization and workplace romance policies, however, multinational companies may find solace that uniform cross-border solutions are feasible in many jurisdictions. Even European jurisdictions that safeguard employees' right to privacy to a significant degree, including Germany, Italy and the United Kingdom, may allow employers to protect their interests while still respect local law, culture, practice and employees' right to privacy.

Erika C. Collins is a member and Ryan H. Hutzler is an associate in Epstein Becker & Green's employment, labor and workforce management practice.