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Alienation of Affection & Employer Liability

by Beverly Bird, studioD

The workplace has a reputation for being a hotbed of romantic indiscretions and extramarital affairs. Courts in different states take different positions as to whether an employer has any legal liability if one of these affairs ends an employee's marriage. Most states have abolished alienation of affection lawsuits, but among the few that do allow these "heart balm" claims, some will hold an employer liable for their workers' misbehavior – but only under certain circumstances.

Alienation of Affection

Alienation of affection is a tort claim. In plain English, this means someone committed an act that either breaks the law or flies in the face of public policy. Someone else was hurt because of the action, and the injured party can file a lawsuit seeking monetary damages as compensation for the wrong. If you become romantically involved when you're already in a committed relationship with someone else, your partner might have an alienation of affection tort claim, depending on where you live. He can sue your new friend – but not you – for breaking up your relationship. Generally, you must be married, not just dating, for your partner to have a valid alienation of affection claim, and only seven states allow your spouse to file such a lawsuit as of 2013: Utah, Hawaii, South Dakota, Illinois, North Carolina, Mississippi and New Mexico.

Employer Liability

States that recognize alienation of affection claims are divided as to whether an unrelated third party such as an employer can be held liable for your romantic liaison. North Carolina passed a law in 2009 specifically absolving employers from any liability for affairs between co-workers, but Illinois law allows that your employer might have some liability for a workplace affair. The state permits employers to be named as co-defendants in such lawsuits. If you have a concern, speak with an attorney in your area to find out exactly where your state stands.

Burden of Proof

Statutory permission to name your employer as a co-defendant is one thing, but establishing your employer's liability is usually a difficult undertaking. Even if your state allows your spouse to sue your employer, a successful verdict isn't guaranteed. The exact burden of proof can vary by state, but your spouse must usually establish that your employer knew of and consented to your behavior, that your illicit activity occurred while you were on the job, and that it aided or promoted the business in some way. Even if he can accomplish this, your spouse has no case unless he can also prove that your relationship with your co-worker was the sole cause of your breakup. He must demonstrate to the court that you would have remained happily married if this other individual had not come into your life to lure you away.

The Bottom Line

Even if your spouse is successful with an alienation of affection suit, the verdict may not award him a windfall. Some states, such as Illinois, don't allow judgments for any anguish he might have experienced – he can only sue for monetary losses he suffered because your marriage ended. This comes down to setting a dollar amount on your contributions to your marriage, but typically only for a set period of time. He won't receive a staggering sum based on the assumption that your marriage would have lasted an eternity. Although getting involved with a co-worker can potentially result in divorce and it might cause you problems on the work front, the odds are in your favor that it won't affect your employer. You'd have to live in one of the seven states that allow these lawsuits and that also allow naming your employer as a co-defendant. Then your spouse would have to effectively prove his case for monetary damages.

About the Author

Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.

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