By MATT CHANDLER
mchandler@bizjournals.com | 716-541-1654

Although office romances have long been discouraged - and in many cases, outlawed altogether - to quote the venerable Bob Dylan, "the times they are a-changin."

Many employers have come to the realization that when you put large groups of single people together for 40 hours or more a week, love sometimes blooms.

While banning office dating may not be realistic these days, companies still need to protect themselves if and when a relationship goes south and there's potential for charges of sexual harassment or discrimination.

Enter the love contract.

Though the particulars vary, the general idea is a contract that both parties in a romantic relationship sign, stipulating that they are in a mutually consensual relationship.

In many cases, love contracts outlines acceptable workplace behavior for the dating couple and a course for internal mediation in case of a dispute over the relationship.  

Local employment attorneys say the use of love contracts is on the rise, coinciding with reports about a growing number of workplace-discrimination cases filed nationwide. With more employers being sued, many are taking extra steps to insulate themselves from costly litigation.

"These have been around for years, but I think they have gained popularity in recent years," says James Grasso, an attorney with Phillips Lytle LLP. "My experience has been that it is typically a case-by-case situation where an employer thinks the relationship is one where if it went sour, it could cause a lot of problems."

According to Grasso, there are no hard and fast rules about who is covered under a love contract.

"Usually it's the higher-level executives. Or I tend to see it when you have a managerial employee in a relationship with a non-managerial employee, even if there is no direct supervisory relationship," he says. "I don't see it as much between two non-managerial employees because generally there isn't as much risk there for the employer."

Though attorneys advise companies to have strict policies in place regarding workplace dating, love contracts often aren't a priority until a situation arises.

"Most of the time, we see these pop up after a relationship has developed and the employer realizes it could be a problem," says Grasso. "However, some midsize to large employers often incorporate something into their policies to cover employee relationships. And that may include requiring employees to inform the company if they enter into a romantic relationship with a co-worker."

Robert Boreanaz, an attorney with Lipsitz Green Scime Cambria, says he has worked on love contracts for area clients.

"You might think that these are sophisticated human resource tools that are only being used by Fortune 500 companies, but that's not the case," he says.

Boreanaz agrees with Grasso that because larger companies typically have extensive HR policies that restrict workplace dating, it's often smaller businesses that utilize love contracts.

"In some of the smaller, family-orientated companies, they actually foster a work environment for people to socialize together," he says. "They recognize that that will generate some romantic relationships, and so sometimes it is those companies that will use these contracts when those romantic relationships exist."

The challenge, according to Boreanaz, is that it is only effective for relationships of which management is aware.

"People often don't like to disclose their romantic relationships in the workplace," he says. "For example, if they are involved in a relationship at work and they are married, they are certainly not going to be forthcoming. Because of that, these contracts are limited in their effectiveness because the relationship has to be open and known to the employer."

Add to that the question of whether a love contract would hold up in court if an employee claimed sexual harassment after the breakup of a workplace relationship.

Lindy Korn is a Buffalo attorney who represents plaintiffs in workplace harassment and sexual discrimination cases.

"I think any kind of creative dispute resolution that makes the workplace safer and more productive is a good thing," Korn says, referring to love contracts.

"However, the problem is that you sign it only after the relationship is discovered. Let's say that later on, the woman wants out of the relationship and perhaps there is some retaliation. This person now has legal, actionable rights, and I'm not sure that this agreement would be upheld in court."

While they may not be airtight to fully protect employers, Korn says that given the sensitive nature of an employee relationship, having options for internal resolution can be the most valuable part of a love contract.

"It may start out consensual, but if it turns into something else that is non-consensual, then the parties have agreed to resolve it through some internal process - whether it is conciliation, mediation or collaborative discussions," she says.

Love contracts may not protect every employer in every situation, but Western New York attorneys say they are seeing greater demand for them at companies of varying size.

The best protection still comes down to a strong written policy that is reviewed regularly with employees, Boreanaz says, as well as a consistent response by management to cases that arise.