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Alex Myers

Alex Myers of Myers & Associates will take over the legal advice column "Minding Your Business." He specializes in business law.

Dear Alex:

I am an unmarried business owner and I am picking up on flirtation from one of my employees.

I admit that I flirt back, and I think that this could turn into something more, but common sense tells me it may be a bad idea to date an employee. What are the risks?

Valentine’s Day will be here in a matter of days, spring is right around the corner, and it is often the workplace where people meet and relationships begin.

It is easy to understand how workplace relationships start. People spend all day around their co-workers, where they interact and get to know one another. Outside of the Internet, the workplace might be one of the easiest places for working adults to meet someone.

The workplace, however, has many restrictions that social events and the Internet don’t have. Sometimes there is confusion about where mutual flirtation ends and unwanted harassment begins.

This severity of the situation and its associated risks are particularly true in relationships between supervisors and subordinate employees.

The prospect of sexual harassment is not to be taken lightly. If advances are unwanted, they constitute harassment.

Visual conduct, verbal conduct, and unwanted advances are all types of sexual harassment. For an employee being harassed, this can be a very terrible experience, and an employer can face liability for an employee’s harassment even when management is unaware of the harassment.

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The harasser may not even realize that he or she is harassing the victim. The potential for a conflict of interest, even when the parties enter a relationship with the best of intentions, is high.

It’s easy to think of bad acts that can result in employer liability, but even without bad acts of the employer or employee, there are risks.

For example, after a relationship ends between an employee and a manager, perhaps the employee’s workplace performance decreases.

If the manager has to fire that employee for poor performance, regardless of the relationship, is the employer going to have to defend itself in a wrongful termination claim?

Even in situations where the romantic involvement between the employees is mutual, there are risks to the employer.

“Sexual favoritism” is recognized as a form of sexual harassment in California. Employees who are not involved in an existing workplace relationship may suffer from a hostile work environment and have a claim against the employer if they feel that an employee who is in a workplace relationship is receiving preferential treatment to the detriment of other employees.

In consideration of the risks, what is an employer to do?

Companies have specific policies regarding conduct of employees in relationships with each other, to reduce conflicts of interest and conduct that could be controversial or disruptive. Other companies elect to adopt strict anti-harassment policies, and leave it up to the employees to keep their love interests outside the workplace.

There is no guaranteed method to accommodate workplace relationships while preventing harassment or discrimination, but establishing clear policies and enforcing them is a good way of reducing the incidence of bad conduct and the liabilities associated with that bad conduct.

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Alex Myers is a business attorney with Myers & Associates in Napa. Reach him at alex@myers-associates.com or 707-257-1185. The information provided in this column is not intended as legal advice, nor does it create an attorney-client relationship. The information is not a comprehensive analysis of the law — if you need legal advice, contact an attorney.

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