"Love contracts": one sure way to cure the office romance.

OFFICE ROMANCES ARE fraught with perils for employers. The potential costs of such dalliances can include far more than reduced productivity caused by amorous distraction. Unwarranted or valid sexual harassment claims when the relationship goes south; confidentiality lapses inherent in office "pillow talk"; and even the risk of violence that arises when love in the office is attacked by infidelity at home are just a few of the problems that may arise when consensual romantic or sexual relationships are permitted to invade the work environment.

For years, I have counseled employers that the best preventive tool for avoiding these lust-soaked dangers is prohibition. An employer has the absolute right--and I would say responsibility--to supplement its sexual harassment policy with a carefully crafted and precisely tailored non-fraternization mandate. In varying degrees, depending on an employer's size and geographic footprint, such a policy strictly forbids executives, managers, and supervisors from engaging in consensual romantic or sexual relationships with others in the workplace, particularly their subordinates.

Nonetheless, many employers choose to disregard such counsel for many reasons. It may seem too draconian, personally invasive, or awkward to administer. Some may even benefit from the added zeal and improved attendance that comes from love-smitten employees who are suddenly excited to come to work each day and reluctant to go home at night. Whatever the reason for avoiding a total prohibition of fraternization in the workplace, the "love contract" may provide the next best layer of necessary legal protection.

The document--better termed a "relationship contract" or a "workplace-relationship agreement" to underscore its binding legal nature--declares that two employees have or are about to enter into a romantic relationship and recites some important facts and promises. First and foremost, the parties confirm that the relationship was initiated and is being maintained on a totally consensual basis. This will help the employer defend any later claims of sexual harassment if and when the romance dissolves. To cement this protection, the contract also should include a waiver and release of all claims arising out of the relationship to date. As consideration to bind the parties to such a release, the employer may want to promise continuing at-will employment in the face of a direct violation of its non-fraternization rule.

The contract also should confirm the parties' understanding of and agreement to abide by the employer's sexual harassment policy and to avoid seeking or accepting a direct reporting relationship with each other. Given that future claims cannot generally be waived, it may also be prudent to have the employee in the superior position agree to a permanent relinquishment of decision-making authority over the lower-level paramour. Another typical provision in relationship contracts spells out acceptable and expected standards of behavior in the workplace and at work-related events (i.e., no physical displays of affection). Some agreements also contain assurances to the lower-level employee that terminating the intimate relationship at any time will not result in any work-related retaliation or recrimination. Of course, each contract should be specifically tailored to meet the objectives and unique circumstances of the business at issue and should either be drafted or reviewed by employment law counsel.

While the best advice for employers continues to be a strict prohibition of fraternization in the workplace, the next best preventive measure may well be to permit a "love contract" exception to the rule. The biggest advantage of the concept is to prevent and defend against claims of sexual harassment that often follow in the wake of cooling office passions. Indeed, if an employer is really fortunate, the prospects of entering into a cold, hard legal contract outlining the terms of a contemplated workplace romance may cause workers to avoid the problem altogether by maintaining a strict and prudent policy of separating their paychecks from their love lives.

David Swider is a partner at Bose McKinney & Evans LLP and chairs the firm's Labor and Employment Law Group.