Is That Even Legal?
Is That Even Legal?
Office Romance: Policy, Pitfalls, Protection
A viral kiss cam, a CEO resignation, and a very public reminder: office romance isn’t rare - and it’s not harmless when power, pay, and promotions are on the line. We dive into the real legal and cultural risks with employment attorney David Weisman, separating sensational headlines from practical steps every company can take today.
We walk through why the riskiest relationships are supervisor–subordinate pairings, how undisclosed romances turn into conflicts of interest, and why “consensual” can change the moment a breakup happens. From the McDonald’s and retail leadership cases to everyday teams in hospitals and service industries, we unpack how favoritism—real or perceived—triggers complaints, erodes morale, and pushes good people out. David explains the role of a clear fraternization policy, what a consensual relationship agreement (aka love contract) actually does, and the nonnegotiable move to end reporting relationships when dating occurs.
Policy without practice is a liability. That’s why we dig into scenario-based training that sets boundaries employees can remember: one respectful ask, no means no, and never across power lines. We cover documentation, graduated discipline, and fast, fair investigations that protect people and the business. If you lead a team, work in HR, or just want a healthier workplace, you’ll leave with a playbook to handle relationships transparently, reduce risk, and keep trust intact.
If this conversation helped you, follow the show, share it with your team, and leave a quick review so more listeners can find it. Got a thorny workplace question you want us to tackle next? Send it to producer at evenlegal.com.
Is that even legal? It's a question we ask ourselves on a daily basis. We ask it about our neighbors. We ask it about our elected officials. We ask it about our families. And sometimes we ask it to ourselves. The law is complex and it impacts everyone all the time. And that's why we are here. I'm Attorney Bob Stuhl, and this is season five of the Worldwide Podcast that explores that one burning question is that even legal? Let's go. Today's guest on the show is David Weisman. David, welcome to the show. Thank you, Bob. Great to be here. So, David, you are an employment attorney, which is why I brought you on. A few months ago, and this isn't a really recent story, but a few months ago, Andy Byron, he's the former CEO of Astronomy, he resigned from his job at Astronomer after he was captured on video, canoodling with one of his employees. And the other employee was in uh he was a high-profile employee. And apparently they had this ongoing work romance, and the whole thing exploded all over the internet because of their comical response to being at a cold play, being caught on the Kiss Cam at a cold play concert. So ever since then, I've started noticing a lot of different stories about workplace romance. I saw an article that said that 77% they uh someone surveyed a bunch of service workers, and and the service worker said that 77% of the people responding were either had either been in a workplace romance or had had sexual relations with someone at work. Maybe not physically at work, but some other employee at work. And and I and I saw that, and I now that it's probably peculiar to the people they surveyed. But I'm just like, man, this is prolific. This is everywhere.
SPEAKER_00:Yeah, absolutely it is. And you know, like you said, I think that number is high because it's the service industry, but I've seen plenty of studies that show that uh employees surveyed on whether or not they have ever been in a workplace relationship. Uh as many as well, as low as as 35% say yes, and as high as 60% have said yes. So it's definitely a prolific problem. Um, always has been, and I think it always will be.
SPEAKER_02:Yeah, you know, it I gotta be honest with you. It's I'm a pretty born dude, David. I you know, this doesn't happen in my life. I don't even know of it happening very often. I've worked here 20 years. Um, there was two people I know that uh that dated while we while they were working with us. They later got married over 20 years. I've heard of uh one other couple that dated after they left the firm or after one of them left the firm. But I mean, I just don't hear about that type of stuff happening in my place. It might be because I'm a boring dude, but I'm so I'm surprised how prolific it is.
SPEAKER_00:Yeah, well, in this case, it's probably good to be boring. Uh yeah. But uh, and and and of course, in some places it happens more than others, and sometimes people hear about it, and sometimes people don't. Uh, but I can certainly tell you over the many years that I've been practicing as an employment lawyer, I've seen it come up uh many times, and I've seen it come up uh in just in my my travels working at various law firms um and companies, and uh it's it's out there and it's huge, and it's something companies need to be aware of, concerned about, and taking actions uh to deal with.
SPEAKER_02:And it happens at both the you know, the the line cook level, right? The the regular employee all the way up to the top. I there was um a guy who was CEO of Coles. I heard about him in the past few months, a few months ago, he was he was terminated when it turned out he had a relationship with the company that a coffee company that did business with Coles, of all things. Um there was the the the guy Steve Easterbrook, he's CEO of McDonald's, he was terminated in 2019 for having a relationship with an employee. That one was interesting. Do you remember that one?
SPEAKER_00:I do, in fact, yeah. So the Easterbrook one is really interesting um and shows you just how devastating these things can be. And then it came out after he was gone. Uh, someone reported anonymously that he had actually been involved in several other active sexual relationships with subordinate employees. And so the company investigated that, found out it was true, uh, and they sued him uh to get back their their 40 million plus. Uh and uh the case ended up settling and he ended up paying the company back, I think it was 105 million dollars.
SPEAKER_02:Yeah, and the weird thing is a lot of times these are consensual relationships. Like with the astronomer, there this was a consensual relationship. They both agreed to have to have this this relationship, uh even though they were both married. They agreed to it. That appears it does no one is accusing the CEO uh or the HR person who was you know who was caught with him. No one is accusing either one of them of of uh uh being forced into the relationship, which isn't always true. Like, for example, in this comes up just how prolific this is. Andrew Como, he's running for governor. Excuse me, he was governor, he's running for mayor of New York City, correct? Uh he's in the news again because he's running for mayor of New York City and he had to resign a disgrace for, among other things, his uh mini sexual uh harassing events that he he that he had at work, right?
SPEAKER_00:Yeah, absolutely. And you're right that oftentimes these relationships are consensual. Uh and and you know, the issue or the problem is, well, there's there's a bunch of problems. One is that they can become non-consensual. Um, the other is that when you've got a uh a CEO or a top-level leader in a company dating a subordinate employee, there's obvious power imbalances, there's potentials for conflicts of interest, uh, all of which can ultimately become problems for the company itself. And um, and in a lot of these cases, um, including some of these CEO terminations that you talked about, the issue was not necessarily the fact that they were in the relationship, but the failure to disclose the relationship. Um, of course, it doesn't always help when uh one or both of the people involved in the relationship are married to other people, which was the case with uh the astronomer situation in Andy Byron, where both he and the the employee he was involved with were married. Um I don't know that either of them are still married uh after that blew up, but they were at the time. So uh, you know, and it it it can that certainly can create distractions, it can create uh negative publicity, like it well arguably created negative publicity for Astronomer, although maybe it created positive publicity because now we all know the name of that company, which you know I never heard of before.
SPEAKER_01:No, I've never heard of it.
SPEAKER_00:Yeah, so so what do we do, David?
SPEAKER_02:I mean, it as an employer. Um, I first of all, most sane employers don't want this in the workplace. It's a distraction, right? I mean, if most romances don't end happily, I mean, if you think about your dating career over the years, uh, right, I mean, there's you had a lot more swings and misses than you had, you know, home runs, right? I mean, that that that's everyone's dating life. So unless you're Don Draper, if you're Don Draper from you know that old TV show, you your your dating life is way more successful than anyone else, right? But for the normal people, the the uh you know, you're more likely to swing and miss than you are to hit a home run. So, what do we do as employers? You know, we we want to protect ourselves, we want to protect the culture of the firm, we want to protect ourselves legally.
SPEAKER_00:Yeah, so you're you're right. The company needs to take proactive steps to protect itself, um, understanding, acknowledging that that these things are going to happen. People are are going to date in the relationship, like we talked about. Uh, a huge percentage of people have reported they've done it. Um, it's where we spend most of our time and interact with people all day long. It's it's going to happen. So, what what can companies do to protect themselves uh when it does happen? Um, at a bare minimum, I would say the company needs to have some kind of a policy in place that's in its employee handbook or in some other place that uh is easily accessible to the employees uh that that deals with that addresses workplace relationships. Um one option in that regard is to have a policy that says, uh just a blanket policy that says co-workers within this company can't date, period. Um some companies do that, not very many uh actually do because it's just so difficult, if not impossible, to enforce. So, you know, it's just unrealistic to think that people aren't going to date, particularly at a larger size company. So, you know, more realistically, uh what that policy should should say is that, you know, number one, relationships between, well, first of all, it should say that we the company discourages those sorts of relationships because they they can create uh lots of problems for the company and for the individuals involved. Uh, but recognizing that they they can and do happen, uh, the company does not allow relationships between uh supervisors and subordinates to take place. And in the event that there is a supervisor-subordinate relationship, the company needs to be made aware of that so that it can take action to uh either have one of those employees leave the company or maybe reassign the uh the subordinate employee to a different supervisor or takes take whatever steps are necessary to uh to reduce the risk of a of a person who has a direct reporting relationship uh from dating uh a subordinate. Um the other thing that policy typically will say and should say is that employees who may not be uh supervisor subordinate, but uh but just plain old co-workers, uh, if they are dating, have to report that to HR as well, uh, or report to somebody in management, um, so that the company uh can A is aware of it, and B, what the company often does is have uh what what what as a lawyer I call a consensual relationship agreement, what a lot of companies call more colloquially uh a love contract. Love all right. Yeah. If if you've ever uh watched the show The Office, you may remember the episode where Michael Scott is dating his his boss Jan, and and they disclose the relationship to to HR and they have them sign the the love contract, and and Michael's so proud of that that he has it framed and has it hanging up on his office wall. Um an extreme example of uh of what people might do when they get these things, but um, but the real and companies use them. Um I've drafted them. I've uh I've never been a party to one, but I have drafted them for other people.
SPEAKER_02:Um well you're boring, man. You're boring.
SPEAKER_00:I like you, Bob. I am boring. And that's and that's a good thing, um, at least in this context, it is. Yeah. So uh and what those what those agreements say is that uh, well, first of all, you have the the two employees acknowledge that the relationship exists and that it's consensual. Uh, you have them acknowledge that they have received a copy of the company's sexual harassment policy, they've read it, they understand it, they agree to abide by it. Uh, in the event that the relationship should end uh or become non-consensual, where you know one party is pursuing the relationship after it's over when the other one doesn't want it to, uh then they will report that to HR. Um and uh and the company then would have the opportunity to uh control that situation, discipline the employee who's perhaps pursuing the relationship that's unwanted, um, and enforce the company's policies against harassment.
SPEAKER_02:Uh let me push up, let me push up against push push push against you on this. So we get this love contract, and employee employee one and employee two sign it, and everything is going swimmingly, right? Everything's going swimmingly, swimmingly until it's not. Right? Until it's not. And because you know, once they find out, I mean, the beginning of the relationship, it's love. It's blossoming love, David. You know, you just can't help where the heart goes. But then we we end up where the love goes sour. That that contract's not going to insulate us if things start to take a turn for the worse, if they get weird. Will it?
SPEAKER_00:Well, it can't, it it's not gonna 100% insulate you, but it can give you at least some layer of protection, right? So if the if the relationship goes south, which it often does, uh, and uh one employee continues to pursue it, uh which is not welcome by the other, um, you you've got a an acknowledgement by the employee that they're gonna report that, so the company is aware of it because the company needs to be aware of it if so that it can prevent uh prevent it from happening, right? So and and that's how the company can pres can pr protect itself from liability by taking steps to uh address a harassment situation. Um and that's just kind of black letter law that if if the company becomes aware of of a of a potential harassment complaint, uh it has to take steps to investigate and take appropriate remedial action to the extent that that their investigation reveals that there actually is some type of harassment going on. So you've now got employees who have agreed that they will report any any misconduct to the extent the relationship ends. Um you've also got an in that agreement, hopefully, language that says they agree that they will behave professionally at all times in the workplace, whether during the relationship or after the relationship ends. Um and if that doesn't happen, if they don't abide by their agreement, then the employees can and should be disciplined for that.
SPEAKER_02:Yeah. You know, I was it the thought occurred to me, we're thinking about it from the employer perspective, and 100% you need something like this in place. But the if it's if the you know, there's two types of relationships, you know, ro romance relationships in the workplace, subordinate to the you know, employee, uh the the subordinate to the to the manager type relationship, I should say, and then the co-equals type situation. Well the manager needs that love contract probably more so than the subordinate. Or rather more so than then than the employer, right?
SPEAKER_00:Well, if you've got a manager subordinate relationship, um, I I think you need to do more than have just have a love contract in place. You you need to uh make sure that you need to you need to end the manager uh subordinate relationship, meaning you transfer one employee to a different department or a different manager. Um you don't want you don't want someone you don't want to know about a relationship where you've got a uh a subordinate employee reporting to a manager that are dating each other.
SPEAKER_01:Yeah, that that's bad. That can be real bad.
SPEAKER_00:That is very bad. Um there's just there's just way too many. I mean, there's there's obviously lots of problems that can occur in any workplace relationship, but when it's a supervisor subordinate relationship, um it's it's almost a lawsuit waiting to happen. And uh, you know, the love contract can help defend that lawsuit, but if they're still reporting to each other and they're dating, so one employee has the ability to control the other's uh terms of employment, their salary, their raises, um, their hours of work, what shifts they get, um, that's just fraught with peril. And not only because the uh the manager can negatively impact the person they're dating if things go badly, but they also might show favoritism to that person while they're dating, which can then lead to problems with other employees who are saying, Hey, well, you know, what the heck's going on here? You know, she she got a raise and I didn't, or she gets to work all the best shifts and I don't. Um, I know why that is. It's because she's dating the the manager, she's dating the boss. Um, and that can lead to claims from other employees against the company as well. Yeah. So there's just so many different problems that can come out of that scenario.
SPEAKER_02:Hospitals are famous for this. Anyone who has family who has ever worked in hospitals knows that this is the hospitals are fraught with these types of relationships. I mean, it's just and it destroys culture. It takes a good culture to a hostile culture for everyone when these types of things happen.
SPEAKER_00:Yeah, I agree. And and it's not always just a legal issue that you need to be concerned about, but there are just so many uh employer relations issues that that can come out of this, and it can it can kill workplace morale. Um, and you know, you can lose good employees because you know they get fed up with the fact that one person is is getting all these benefits and they perceive it's because they're in a relationship with the boss, so they say, Oh, I'm I don't need to stay here, I'll go work somewhere else. So you can lose good employees, you can destroy morale. So there's just so many problems that can come out of it.
SPEAKER_02:Is it enough that the company have a written policy? I mean, if I'm an employer and I have in my employee handbook everything we just said, if you're in a relationship with an employee or you know, with another employee, you have to disclose it. You know, we had all these types of things we just said. They enter into the love contract, but is it enough just for me to put it in my policy? Do I do something more to protect my for my company?
SPEAKER_00:Yeah, as the company's lawyer, I would say you absolutely need to do something more. And that is you need to train your employees on the policy, make them make them aware of the policy. Uh, and I would suggest doing that through uh through formal training sessions. And, you know, maybe that's every year, maybe it's every couple of years. It should be done on a regular basis. Um, there are some states, uh, New York, California, Illinois, uh, for example, that require sexual harassment training every year. Uh, that's not required in Arizona, uh, but it's still a really good idea to do it. Uh maybe, maybe it's not necessary every year, but uh, like I said, to do it periodically, to go over the harassment policies, the anti-discrimination policies, uh, and as part of that training, and and uh you know the training should be generally on sexual harassment and discrimination in the workplace, uh, and how to avoid those issues and how to deal with them when they come up. Um, but as part of that, there should be a discussion about the company's uh fraternization policy and what what the terms of that dating policy are, and to talk about you know, things like okay, here's an example. Um, you ask your your coworker out on a date. Uh, your coworker is not your subordinate. Is that okay? Yes or no? Yeah, that's that's generally okay. Uh your coworker says no to that date. Is it okay to ask her him or her out again? Uh no, you gotta stop, right? Um there's I know there's a Saturday night live skit that that we have live skit exactly on that.
SPEAKER_02:Shane Gills is like, well, can I bank? Can I bank my my my yes on over here with Susie and apply here to Jill? Go that work, you know.
SPEAKER_00:Yeah, right. Of course, the the obvious answer to that is absolutely not, right? So yeah, you know, you get to ask someone out once, uh, and when they say no, you stop. That's that's the general advice.
SPEAKER_02:If I'm Don Draper again, I could ask him out, and boom. I'm swing, I'm swinging for the I'm swinging for the fences home run every time. But if I'm Bob Sewell, you know, and I look like me instead of like Don Draper, uh yeah, I'm I'm I'm swinging and I'm missing. That ain't doesn't seem fair, my man. I should be allowed more than one ask.
SPEAKER_00:Yeah, see, it does it doesn't work that way. It doesn't matter if you're Don Draper or you're Bob Sewell, you you can ask someone out once. And and and by the way, I would not encourage people to be asking people out even once in the workplace. But as sort of a general policy, if someone feels the need to ask out their single coworker on a date, uh okay, go ahead and ask them out appropriately. Uh, and if and when they say no, you stop asking. And that's true whether you're Don Draper or whether you're Bob Sewell. Um, and by the way, Don Draper is is like an HR nightmare.
SPEAKER_03:I mean, that guy is that guy.
SPEAKER_00:We could do a whole show talking about Don Draper and all the problems he creates for his workplace.
SPEAKER_02:So talk about a hostile work environment. I mean, that dude was yeah, okay. So we I get the policy, I have it written down, we discuss it once a year. Someone violates the policy, I gotta enforce it, right? I can't just say that's not nice and move on. I gotta enforce the policy, right?
SPEAKER_00:Yeah, absolutely you do. Um, having the policy and and not enforcing it is um is really kind of worthless. Um, it's it's not gonna protect you from liability in the event that someone brings a claim for sexual harassment, if they can show that you know, you might say, Well, I got this great policy that says you can't do this, but if there's no consequence for doing it, um, it's gonna be really hard to protect yourself from liability in the event that employee brings a claim against you. So, yes, part of the advice is not only have that policy, but enforce that policy and enforce it uniformly against all employees. Um, you know, whether it's Don Draper or whether it's Bob Sewell, you got to enforce the policy. Um, and you know, the the company can decide based on the particular circumstances, uh what discipline they might want to impose for violating the policy. Um, it doesn't necessarily have to be, you know, we're gonna fire anybody who who we find out violates this policy. That can be the discipline. It's probably not the best idea to decide as a blanket rule that's what's gonna happen. You know, maybe it is just a slap on the wrist. Maybe it's a look, we found out that you violated the policy, we found out you were in a relationship and didn't report it to us. Um, we're gonna put a note in your file that says that we had this conversation with you, we're gonna warn you that going forward you need to abide by the policy. We're gonna make you sign the love contract, um, and we're gonna move forward. Um, and then if if there's some other bad act by that employee, whether it's violating that policy or some other employee or some other workplace policy, um, you know, then maybe the the discipline is is more severe. Um and of course, you're gonna document all that um so that uh you know it's easy to to prove exactly why you made the decision that you did. Um, but yeah, some action needs to be taken if the policy is uh is put in place. You can't just have it and then kind of ignore it.
SPEAKER_02:It seems like this is like the the type of things that is common sense, but people don't seem to follow it. Right. I mean uh if you ever I I remember I had this this case come up across my desk and I ended up referring to to someone else in the firm where you know the most horrific thought you know things were happening in this company uh because the president of the company thought that he was the funniest guy on earth and he would text inappropriate things to employees. Well, kind of destroyed the company. And uh, you know, the owner of the company had to come in and clean house, and you know, that this is supposed to be this should be common sense to people, it ain't.
SPEAKER_00:Yeah, absolutely. I mean, the stories that I've heard over the years are are just mind-boggling, right? Because you're right, you would think people should know better. And when I I I do these anti-harassment training sessions for employees all the time, and one of the things that I'll talk about is um most of this should should kind of be common sense. And generally the rule is if if you have to think twice before you say something or do something, don't do it. Um, you know, if there's any, if there's any question whether it's appropriate or not, assume it's not. Um, but people just don't seem to follow that. And um the the stories of things that that I've seen that I read about in the case law that you know I that I come across, um, is is just it'll blow your mind. The things, this, the stupid things that people do uh in the workplace, the things they say, the texts they send um that that can really sink a company, like you said. Yeah.
SPEAKER_02:Hey David, thanks for coming on the show. If I was an employer, I wanted to get a hold of you, how would I do that?
SPEAKER_00:Uh, you can reach me in my office at Davis Miles. Uh my email address is dweisman at davismiles.com. And my direct dial phone number is 480-344-0916, uh, or come to our firm's website, uh www.davismiles.com. Uh, you can see my bio on there and get a hold of me through there. Excellent. Thanks for coming on the show.
SPEAKER_02:This is really informative.
SPEAKER_00:Thanks for having me, Bob. Always a pleasure.
SPEAKER_02:Thanks for listening to the podcast. Is that of illegal is now listened to in a hundred countries and available on virtually all podcast platforms. Leave us a review, send us some show ideas, and do so at producer at evenlegal.com. Don't forget, as smart as we sound and as lovable as we are, we are not your lawyers. And we are not giving you legal advice. But if you need some legal advice, get stuck. There's some great lawyers out there, and we are always ready to help. See you next time.