Jottings By An Employer's Lawyer

Wednesday, February 07, 2007

NASA Should Have Had A No Fraternization Rule - Wrong, Would Say the DC Circuit

Workplace romance gone bad is an employer's nightmare. Throw in a high profile (not many much higher than folks who literally fly in space) position and what was a problem, becomes a disaster.

Although by now you would think we might have realized that controlling sexual/romantic desires, particularly when individuals spend tons of intense work related time together is impossible, the desire for a silver bullet solution remains.

Ironically one of the possibilities —a no fraternization rule — just took a hit last week at the D.C. Circuit Court of Appeals. In Guardsmark, LLC v. NLRB (D.C. Cir. 2/2/07) [pdf] a security company had three rules that were challenged by the Board as violating employees' Section 7 rights to engage in mutual aid or protection. Interestingly the decision on the rules was in the abstract, not based on an application.

The Board had found two of the rules in violation, but had okayed the no fraternization rule. The rule read:
you must NOT . . . fraternize on duty or off duty, date or become overly friendly with the client’s employees or with coemployees.
While NASA officials probably wished they had something similar and that Captain Nowak and Commander Oefelein had obeyed it, if they had, the DC Circuit would have called them up short.

To be fair to the DC Circuit, their objection was technical — and they would have allowed the rule with a little redrafting:
Even if Guardsmark has a legitimate interest in a twenty-four-hour ban, it had an obligation to demonstrate its inability to achieve that goal with a more narrowly tailored rule that would not interfere with protected activity. ....

Ever helpful, the court even suggested some alternatives:

  • Since dating and becoming overly friendly include personal entanglements, it could have removed the word “fraternize” from the rule altogether; or
  • It could have either defined the term to encompass romantic relationships only;
  • or made an exception for protected activity.

As with all rules, it is unlikely even having had a perfectly legal one would have prevented the problem — it would only give a reason for taking action afterwards — which at least in the astronaut love triangle debacle is probably not necessary. The bottom line — as long as we have humans for employees, issues like this, but hopefully less publicized, lie in store for all employers.

If everything goes well, I will be talking about this dilemma for employers on a brief CNBC segment during the noon (CST) hour today.


The idea that a company could prevent employees from engaging in a consensual relationship after hours just comes across as plain silly.
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