Workplace romances not only provide an endless stream of water-cooler gossip, they also raise numerous legal concerns, such as those dealing with privacy, sexual harassment, and unlawful termination.  More and more employers seek to limit their exposure to the legal liability and morale problems that result from disintegrated interpersonal relationships in the workplace by adopting policies that ban fraternization between co-workers.  However, a recent federal decision held that a blanket, non-fraternization policy that "implicitly" precluded employees from engaging in union or concerted activity was unenforceable in violation of the National Labor Relations Act ("NLRA").

Pursuant to company policy, employees of Guardsmark, LLC, a nationwide company providing security guard services, were not permitted to "fraternize on or off duty, date or become overly friendly with the client’s employees or with co-employees." A local union challenged Guardsmark’s "fraternization rule" on the grounds that it discouraged protected labor activity—such as the right to join a union or bargain collectively—in violation of section 8(a)(1) of the NLRA, by prohibiting employees from meeting with each other to discuss the terms and conditions of employment.  The National Labor Relations Board sided with Guardsmark.  The Board found that Guardsmark employees reasonably understood that the non-fraternization rule was designed solely to prohibit interpersonal relationships that could compromise a security guard’s judgment and, therefore, did not preclude protected labor activity.  


The Court of Appeals for the District of Columbia disagreed, and held that the plain language of Guardsmark’s "fraternization rule" could be reasonably interpreted as prohibiting protected activity.  Relying on the cannon of construction that all words in a text must be given independent meaning, the court reasoned that "if the word ‘fraternize’ means nothing more than the personal relationships conjured up by ‘dating’ and ‘becoming overly friendly,’ then ‘fraternize’ would have no independent meaning." Thus, "fraternize" must apply to prohibit something other than intimate relationships. 


The question for the court then became whether employees would reasonably interpret that "something" to include the protected activity of discussing their terms of conditions of employment.  To answer this questions, the court surveyed standard dictionary definitions of the word "fraternize."  The court found that every definition lists "fraternal association" as the primary definition, with social and intimate associations provided as a secondary meaning.  As unions are fraternal organizations, the court concluded that employees would reasonably understand the rule to prohibit union activity under the NLRA, not just personal entanglements.


In further support of its conclusion, the court contrasted Guardsmark’s fraternization rule with the rule addressed in Lafayette Park Hotel, a 1998 NLRB case that upheld a policy that prohibited fraternization between hotel guests and hotel employees on hotel property.  The court noted that unlike the Lafayette Park rule, Guardsmark’s rule was not limited to a particular location.  More significantly, the court proffered that the word "fraternize" meant something different in the Lafayette Park context than in the Guardsmark context. Because the term "fraternize" can be defined as an intimate or friendly relationship with people of a different "social position," and hotel guest are in a different "social position" than hotel employees, the court speculated that it was reasonable for Lafayette Park employees to understand that the rule did not preclude them from fraternizing with each other.  This was in direct contrast to the Guardsmark non-fraternization rule that explicitly barred employees from fraternizing with each other.  As Guardsmark employees could not engage in protected activity without fraternizing with each other, the rule violated the NLRA.


The court also examined Guardsmark’s business justification for its non-fraternization rule.  In particular, Guardsmark argued that the rule provided a safeguard against interpersonal relationships between guards that may compromise security.  Guardsmark sought to ban such relationships on and of-duty because it is "difficult to draw a solid line between being friends off duty and on [and] if employees develop a social relationship with somebody,…it is very likely to carry over to have the same level of relationship when they are on the job."  The court found that even if Guardsmark’s justification was legitimate, the rule was not narrowly tailored to meet that goal.  Guardsmark could have removed the term "fraternize," defined the term to encompass only romantic relationships, or explicitly carved out an exception for protected activity.  Because it failed to do so, the court refused to enforce the Board’s decision upholding the policy.


An effective non-fraternization policy can help protect against legal claims.  The Guardsmark case emphasizes the need for expert craftsmanship when drafting non-fraternization policies that may infringe statutory rights.  Therefore, employers should closely review their policies.