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Claims for alienation of affections and criminal conversation, commonly
known as “heart balm” claims, are usually asserted by an individual
against another person for having an extramarital sexual affair with the
individual’s spouse. In most cases, these claims are asserted against
the spouse’s “paramour” for alienating and destroying the marital
relationship of love and affection between the plaintiff and his or her
spouse.
However, in Smith vs. Lee and Progressive Lighting, Inc., a recent case
from the United States District Court for the Western District of North
Carolina, the plaintiff had asserted these “heart balm” claims against
his wife’s alleged paramour and the company that employed him. The wife
and paramour were both employees of the company and the paramour was the
wife’s supervisor.
The plaintiff asserted his claims against the company on the basis of
“vicarious liability.” An employer may be held “vicariously liable” for
the actions of its employee when his actions are expressly authorized by
the employer, or the employee’s actions are committed in the scope of
his employment and in furtherance of the employer’s business, or the
employee’s actions are “ratified,” that is, approved or condoned, by the
employer.
The plaintiff in Smith alleged that the paramour seduced his wife and
persuaded her to abandon her marital relationship in his capacity as her
supervisor. The plaintiff alleged further that many of the paramour’s
actions occurred during business hours in the scope of his employment
and in furtherance of the company’s business. The plaintiff claimed that
the company knew of the paramour’s actions.
The federal court in Smith granted the company’s motion for summary
judgment and dismissed the plaintiff’s “heart balm” claims against the
company. The court held that the paramour’s alleged actions in having a
sexual affair with the plaintiff’s wife were not in the scope of his
employment or in furtherance of the company’s business. The court
reasoned that the company was not in the business of relationships and
that relationships between employees were not in the scope of the
company’s business and did not further the company’s business in any
productive manner. Further, even accepting the plaintiff’s allegations
that the company knew of the paramour’s actions, such knowledge alone
was not enough to show authorization or ratification of the paramour’s
actions, according to the court.
In justifying its ruling, the Smith court concluded that “heart balm”
claims are private and personal and that holding employers to owe such a
duty to the spouses of their employees would extend the potential
liability of employers too far. The court stated, “It is simply
unreasonable to expect businesses to regulate the intimate and personal
affairs of their employees.”
The result in Smith was similar to the result in a decision from the
North Carolina Court of Appeals in 2000 in a case involving the same
issue. In both decisions, the court held that the personal romantic
relationship between the company’s supervisor or manager and the
plaintiff’s wife was not in the scope of his employment or in
furtherance of the company’s business, and that knowledge alone was not
enough to show authorization or ratification of the supervisor’s or
manager’s actions by the company.
Extramarital sexual relationships between employees, especially between
an employee and his or her supervisor, can result in sexual harassment
claims. In addition, these court rulings leave open the possibility of a
claim against an employer based on authorization or ratification of an
extramarital sexual relationship between employees. Employers on notice
of such relationships between employees should take steps to protect the
company from such claims.
For more information on the difficult issues raised by workplace
romances, see our article,
Non-Fraternization Policies Pose Difficult
Issues But May Be Useful When Limited and Enforced Fairly
For questions regarding this Alert or other employment matters, contact
Louis Meyer
at 919.783.2810 or
lmeyer@poyners.com, or
Susie Gibbons
at 919.783.2813 or
sgibbons@poyners.com.
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