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Managing the Risks of Workplace Romances – A Guide to Appropriate Policies

It is no secret that love and romance can blossom just about anywhere, including in the workplace. A recent Vault.com survey reported by The Fiscal Times, examined employers in a variety of industries and professions and found that a significant number of employees reported they have had, or are having, consensual romantic relationships with other employees.

These relationships run the gamut from the “random office hookup” to ongoing casual relationships, long-term relationships, and/or marriage. While it may already be obvious from a human resources standpoint, it’s inevitable that relationships like this will at some point impact the workplace.  It is, therefore, necessary to take action to ensure inter-office relationships are carefully monitored and managed, especially if the work relationship outlives the romantic one.

The Risks

A number of different and legitimate concerns flow from the existence of workplace romances, even when they’re fully consensual and in no way implicate sexual harassment, which requires different handling.  These concerns include:

  • The development of perceptions of unfair treatment and favoritism if a supervisory relationship exists;
  • Personal discomfort that other employees may have over public displays of affection;
  • The potential that if the relationship deteriorates, claims of sexual harassment will later develop;
  • Allegations of conflicts of interest, impaired business judgement, and confidentiality breaches on the part of a supervisor involved in such a relationship.

Some argue that all such relationships should be prohibited. However, if such a policy is implemented, claims of invasion of privacy or improperly interfering with the off duty conduct of the employees could result.   It is perhaps more prudent given the likelihood that these relationships do, or will, exist in your nonprofit, to create policies to discourage, yet monitor and control the effects of the relationships that do exist.

The Policies

The best place to start is with a comprehensive conflict of interest policy, which should be designed to deal with the potential negative effects of workplace relationships, particularly if it involves a supervisory relationship. Such a policy should state several important points, including:

  • Consensual romantic or sexual relationships between a supervisor/manager and an employee may at some point lead to unhappy complications and significant difficulties for all concerned, and therefore may be contrary to the best interests of the employer;
  • The employer discourages such relationships. However, if these relationships do exist, the privacy rights of the employees will be respected outside of the workplace and only conduct in the workplace will be monitored and subject to compliance with applicable policies;
  • If a romantic or sexual relationship between a supervisor and an employee should develop, it shall be the responsibility and obligation of the supervisor to promptly disclose the existence of the relationship to management;
  • Upon being informed or learning of the existence of such a relationship, management reserves the right to take all steps necessary to eliminate the conflict of interest that it, in its sole discretion, deems appropriate;
  • The supervisor must agree to withdraw from participation in any activities or decisions (including, but not limited to, hiring, evaluations, promotions, compensation, work assignments and discipline) that may reward or disadvantage any employee with whom the supervisor/manager has or has had such a relationship;
  • Displays of physical or verbal affection in the workplace are prohibited.

In addition to prohibiting displays of physical affection, employees involved in a workplace romance should be reminded to avoid communicating to other employees explicitly and/or implicitly that their relationship works to either party’s advantage. In fact, the California Supreme Court has ruled that extensive sexual or romantic favoritism, if pervasively displayed in the workplace, can be the basis of a hostile work environment sexual harassment claim (See Miller v. California Department of Corrections).

Concern that the involved employees’ relationship can make other employees uncomfortable can also be managed by the implementation of a policy that mandates that all employees act in a way that is, at all times, professional.  Many nonprofits already have these policies in place, but they can and should be revised to include that physical or verbal displays of affection are considered to be unprofessional and in violation of the policy.

Another, and perhaps the most effective way to manage the risks of these relationships is to have the employees enter into a written acknowledgement of the relationship, and committing to a number of responsibilities to avoid the risks and concerns associated with the relationship. This so-called “love agreement” should, among other things, contain acknowledgement of the sexual harassment policy and an agreement to report any change in the relationship or any non-consensual behavior that may violate the sexual harassment policy.

When Things Go Wrong

To the same extent it should be expected that consensual romantic relationships will develop in the workplace, it is to be expected those relationships will sometimes come to an end – with less-than desirable results.  When this happens, the risk that a complaint of sexual harassment will follow increases. If one does arise, these complaints should be handled like any other complaint made by an employee, which would include assuring the complainant that they will be protected from any retaliation.

At that point, the policies and agreements that have been implemented to avoid the risks will be critical to the defense of any claim that arises from the end of the relationship.

Managing Volunteers

Did you know that many 501(c)(3) nonprofit organizations have no paid employees? Volunteers provide a critical link between nonprofits and their communities by bringing needed skills, connections, insights and resources to the organization. In some cases, they also serve as valuable public advocates and ambassadors for the nonprofit. Some organizations only have a few volunteers, while others manage hundreds of volunteers – but the fact remains that volunteers are critical to the relationship between nonprofits and their communities.

It’s important that your volunteers know what they can expect in the way of guidance and supervision, as a lack of clear directions and/or difficulty in contacting a supervisor can cause frustration and lead to mistakes. While there are many ways in which to manage a volunteer workforce, consider checking your strategies against the list below to assure your nonprofit is following the best safety practices possible:

      1. Commit to providing explicit instructions for all volunteers, as they cannot meet expectations that are unclear.
        • Similar to a job description, volunteer position descriptions typically include a list of expected duties and responsibilities.
        • It is a good practice to provide a volunteer handbook, set of policies, and/or a procedures manual. This establishes expectations and provides critical information about the organization. Clear policies and procedures can also minimize liability.
      2. Let volunteers know what they can and cannot (or should not) do. As an example, many programs specifically prohibit volunteers from offering rides to clients, or taking clients home for meals or social activities. Avoid unintended liability by providing explicit direction. Don’t assume that your interpretation of “common sense” will prevail.
      3. All volunteers should sign a volunteer waiver. If your organization allows minors to volunteer, their waiver must be signed by a parent/guardian.
      4. Any volunteers that pose a safety concern or pose a threat to your nonprofit’s clients or staff should not be permitted to continue participating as a volunteer.
      5. Volunteers should be subject to discipline leading up to and including termination of their volunteer service. Executive Directors should not be expected to welcome volunteers just because they happen to be a friend of a board member or a donor. They have to have a role with expectations agreed to in advance.
      6. Volunteer injuries need your immediate attention. If a volunteer is injured when providing volunteer service, it is important to conduct a prompt and thorough investigation. Your action plan should include:
        • Demonstrating compassion and concern for the volunteer’s well-being; determining the cause of injury;
        • Notifying your insurance broker to determine if there is any coverage available;
        • Evaluating whether future incidents can be prevented with training, equipment or other measures;
        • Evaluating the adequacy of the immediate response following the incident.
          (Were medical personnel contacted in a timely fashion?); and
        • Identifying how the organization’s response to a similar incident could be improved.

When using youth volunteers (anyone under the age of 18), you will want to think about their duties and responsibilities and whether those activities are suitable. There are several things to consider when engaging youth volunteers:

      • In opportunities where children get involved alongside their parents, you should ensure the activity is suitable and that parents are briefed about any risks. In this type of activity, parents remain responsible for their children.
      • For opportunities in conjunction with other groups (e.g., schools, clubs), we recommend working with the group leader to ensure they have appropriate supervision and insurance in place. You should still assess the risk of the activity and ensure it is suitable for the group. Your organization is responsible for ensuring the activity is safe, but the supervision is the responsibility of the group leader.
      • For individual opportunities for youth, ensure that there will be proper oversight in place as they will not be as closely supervised as they may be in one of the two options noted above. At no time should a minor volunteer be alone with an adult.
      • Any projects for which you are providing equipment, such as gloves or gardening equipment, have appropriate sizes for the youth. It’s your responsibility as the nonprofit to ensure youth volunteers have a safe, healthy and positive experience.

In addition to ensuring that volunteers are safe, don’t forget to show your appreciation on a regular basis! The importance of a simple verbal “thank you” cannot be overstated.

Remember that a volunteer is an individual who performs hours of service for you without promise or expectation of compensation. Any compensation provided to a volunteer, such as a stipend, may inadvertently convert your volunteer into an employee. It can also jeopardize the legal protection for the volunteer under the Volunteer Protection Act.

While the law provides some relief for the negligent acts of volunteers, these laws vary widely from state to state and are often misunderstood. And, don’t make the mistake of assuming that your nonprofit will be exempt from liability because its purposes are charitable, or because the person responsible for the harm is a volunteer.

Managing volunteers is similar to managing paid staff. As with your staff, volunteers expect to be provided with rewarding experiences, treated with respect, trained as needed, properly supervised, and provided with feedback. Millions of volunteers across the country support our communities through all kinds of valuable service.  And, they provide this service with an admirable record of safety.  Since inadequate or improper training and oversight is frequently the cause of an incident and/or injury involving a volunteer, we hope these suggestions will help make that record of safety even better!  Wouldn’t we all prefer to avoid incidents and injury to people and property and spend money on direct services rather than on expensive claims against the organization and volunteer?

Preventing Sexual Harassment in the Workplace (Hint: It Starts at the Top)

As recently stated by the Equal Employment Opportunity Commission (EEOC): “harassment in the workplace will not stop on its own – it’s on all of us to be part of the fight to stop workplace harassment. We cannot be complacent bystanders and expect our workplace cultures to change themselves.”

The truth of this statement cannot be overstated.  While it has long been believed that training and an effective complaint process is the way to stop the problem, the EEOC has pointed out that more is likely needed.

“With legal liability long ago established, with reputational harm from harassment well known, with an entire cottage industry of workplace compliance and training adopted and encouraged for 30 years, why does so much harassment persist and take place in so many of our workplaces? And, most important of all, what can be done to prevent it? After 30 years – is there something we’ve been missing?”

It could be said that the missing element is leadership. Too often, yet for good reason, dealing with sexual harassment in the workplace is something that management, executive directors, and chief executive officers often defer to others to handle and manage.

Perhaps the time has come to see the wisdom and efficacy of having the leaders of the mission of the enterprise become more personally involved in the necessary task of eliminating and preventing sexual harassment in the workplace.

Granted, the reality is that many of these individuals are very busy, taxed and overworked. However, a demonstration by senior management and supervisors that they acknowledge, understand, and will take an active role in prevention can only have a positive effect upon the consciousness in the workplace that “zero tolerance” means just that.

In general, there are many ways this leadership can be demonstrated. Here are just a few suggestions:

1. Management Should Take an Active Role in Training

While senior managers are in attendance in training sessions, as some states require, they are often left off the list of presenters. Indeed, the presence of these agency leaders provides a strong and important signal to staff that this subject is important and that management is committed to the elimination of sexual harassment in the workplace. It’s also important to consider an active role in the presentation by the manager, as their level of engagement is likely to have a significant impact on the staff’s engagement.

2. Train Supervisors to Monitor the Workplace for Policy Breaches

Supervisors should be trained to proactively monitor the workplace for any breaches of the organization’s sexual harassment policies. Supervisors and management are uniquely positioned to monitor the interactions of staff with one another and to make inquiries if there is a hint that any form of harassment is occurring, or if one demonstrates the effects of being victimized.

3. Demonstrate Proactive and Effective Support of Enforcement

Given the need to effectively deal with an occurrence of sexual harassment in the workplace, it’s important to remember that the best way to fix a problem is to remove the offender. This often presents management with a conflict of loyalties if the offender is a long-time employee, colleague, or friend. Moreover, it can be the case that the offender is a very productive or important contributor to the overall operation of the agency, including members of senior management. These loyalties or practical concerns must be set aside in making decisions and imposing consequences for violation of sexual harassment policies. No one is too important, indispensable, or essential to an employer’s business to be disciplined for violations of a zero tolerance policy, and managers should demonstrate the courage to handle these situations properly.

4. Monitor and Track Complaints and Investigations

While the complaint and investigation processes are properly delegated to staff with the experience and expertise to handle these critical functions, it’s also vitally important that management know how these actions are handled. Keeping track of the status of complaints and investigations allows management to know the character of their workplace and the agency’s progress in ensuring the workplace is free from harassment.

5. Maintain an Open-Door Policy

Nothing will encourage employees to come forward and report their experiences more than a senior manager who welcomes, supports, and empathizes with them. That support not only enhances morale within the workplace affected by harassment, but also demonstrates an appreciation of the problem and commitment to prevent it from occurring again.

The law has placed no greater importance on any single aspect of employment than the prevention and elimination of sexual harassment. While training and effective complaint and investigation policies have provided methods to achieve this goal, dedicated understanding, support, and encouragement by the leaders of an organization are essential to ensure that mission will succeed.

Developing a Risk-Aware Culture

We know when it comes to your nonprofit’s work, the phrase “risk management” doesn’t necessarily make you feel like jumping up and down with excitement— but it’s as crucial as any other task your organization undertakes. Good risk management helps ensure your nonprofit will have enough assets to carry out its mission, and it also vastly increases the odds that your organization’s actions will not harm the population it serves, the general public, or your employees and volunteers.

Of course, even the best planning cannot assure that bad things will not happen to good nonprofits. However, without risk management plans, nonprofits leave themselves vulnerable to events that could cause harm to individuals served by their organization, or to the organization itself. These types of incidents can be costly financially, and can affect your organization’s reputation with funders and in the community. However, even a good risk management plan won’t save the day if you don’t have the culture to execute it.

In many ways, risk management is just one aspect of overall good management.  Risk culture can be defined as the “soft” side of risk management. At a basic level, risk culture is the way everyone in an organization feels about risk, and recognizing that feelings, attitudes and perceptions about risk and safety will influence how they are managed. It sets the tone of an organization, influencing the risk-consciousness of its people as they conduct their daily activities and pursue their business objectives. The culture of the organization sets the tone, and research demonstrates that the level of safety performance an organization can achieve is dictated by its culture. It’s the fabric in which you wrap your organization, and the tighter knit the fabric, the more protection it’s able to provide!

Of course, culture isn’t something that can be changed overnight. It requires constant, consistent messages to your employees and volunteers that managing risk is a part of their daily responsibilities. Not only is it valued, but it’s critical to your organization’s success and survival. Keep in mind – you’re not working to make safety and risk management a priority for your nonprofit– you’re working to change how people value each other and your clients, and that translates into safety and risk management. Not everybody is going to value processes and procedures, but they will comply with them if they believe that doing so will help keep the people they care about safe.

In fact, almost all incidents can be traced back to individual human behavior. Sometimes we want to get a job done quickly and we think we know what we’re doing, or we think nothing bad will happen, so we skip steps. That’s why it’s important for people in the organization to watch out for one another, and for the group mentality to be about safety and risk aversion. And while having the courage to speak out when you see something unsafe can be uncomfortable or difficult, it matters. The support for giving all employees the safety to speak out when they believe they have spotted an unsafe condition must come from top management.  Employees need both permission and the right communication channels to be able to report concerns.

At this point you’re probably wondering – how do you gauge current risk culture at your organization? Keep in mind that culture is revealed through behavior, and people adjust their behavior to match the behavior of those around them. Your organizational culture drives the behavior of your employees and volunteers.

Top leadership has to make sure that everyone knows that he or she supports a culture of transparency and values input from employees and volunteers.  Having a strong risk culture means your staff and volunteers know what your organization stands for. They need to know that their behaviors and actions don’t put themselves or others at risk.

Building a risk aware culture is one of the most important things you can do for your organization. Although risk management is a process, not an all-or-nothing proposition, every journey begins with a first step. You may have binders full of risk management protocols and procedures and still not have a risk aware culture. Or, you might not even think you have a “risk management” plan, but still have a risk aware culture that provides safe outcomes for your staff, clients, and volunteers.  Don’t get bogged down with the words “risk management.”  Ask yourself whether you have a culture of caring for others and whether you have established practices and procedures that help reinforce and standardize those caring practices. That’s true risk management!

Background Checks and Ban the Box in California

Historically, it has not been uncommon for risk-adverse employers to adopt policies prohibiting the hiring of applicants with a criminal history. Given that one in seven Americans has some sort of criminal history, numerous states and local jurisdictions are passing legislation that makes it more likely employers will consider these applicants. Increased employment opportunities have been shown to reduce the likelihood of recurring offenses for workers with a criminal record, and help these individuals re-integrate into our communities.

Key to these legislative efforts are “Ban the Box” laws, which generally prohibit employers from inquiring about criminal history on the employment application. Nine states and more than 15 cities have adopted Ban the Box laws that apply to private sector employers, with many more jurisdictions applying these laws to government contractors.

California jumped on the ‘Ban the Box’ bandwagon with Assembly Bill 1008, effective January 1, 2018. Modeled after the City of Los Angeles’ Fair Chance Ordinance, this new California law prohibits employers with five or more employees from inquiring about criminal history until a conditional offer has been made. Ban the Box laws don’t prohibit employers from considering criminal history, but rather create a process establishing the timing of when the criminal history can be considered. There are limited exclusions under California’s Ban the Box law, including for positions where an existing law requires criminal background clearance.

Under the California Ban the Box law, an employer must make an individualized assessment of whether an applicant’s criminal history is acceptable or not. It also outlines a process by which the applicant can dispute the accuracy of the criminal history, and provide evidence of rehabilitation or mitigating circumstances for the employer to consider. Employers are required to provide notice of their decision, and grant an opportunity for the applicant to respond, before making the decision final.

While the Ban the Box law is a recent addition in some states, the requirement that employers conduct an individualized assessment of applicants with criminal histories is not. In 2012, the federal Equal Employment Opportunity Commission (EEOC) adopted Enforcement Guidance for employers considering denying employment based on criminal records. These guidelines were founded on studies which demonstrate that criminal record databases are inaccurate or incomplete, and that using criminal history as a basis to deny employment creates the potential for disparate impact of individuals based on factors such as race, which is unlawful under Title VII of the Civil Rights Act.

The EEOC guidance lays out a process for employers to conduct an individualized assessment of whether, based on the job, there is a business necessity to exclude an applicant with a particular criminal conviction, which includes a review of the nature and gravity of the offence, the time that has passed since the conviction or completion of the sentence, and the nature of the job sought.

Many states, including California, have similar regulations or guidance on this issue, including laws that limit an employer’s ability to use certain types of criminal records, such as arrest records, juvenile records, or certain low-level marijuana convictions. Additionally, the Fair Credit Report Act (FCRA) and similar state laws, require employers to obtain written permission to search the criminal records history of employees and applicants, and to follow additional notice procedures if a criminal record is being used to deny employment.

When it comes to criminal background checks and Ban the Box laws, the key take away for employers is to review all laws applicable to their workers’ in the jurisdiction in which they work, and to create checklists and standardized forms to ensure compliance.

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