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Can Employers Be Sued by Adulterous Employee's Spouse?

    Client Alerts
  • February 20, 2015
North Carolina is one of a handful of states that recognize alienation of affection claims. Alienation is a personal injury cause of action brought by a spouse, usually against a person alleged to have engaged in an adulterous affair with the plaintiff’s husband or wife. North Carolina allows spouses to collect damages resulting from the “stealing” of the victim’s spouse’s affection and companionship. Most states (including South Carolina) eliminated the alienation tort, concluding that it was a relic of times when spouses were considered quasi-property, and not fully responsible for their own behavior. Despite this trend, the North Carolina General Assembly has repeatedly refused to follow suit.

When the adulterous affair occurs in the workplace, the wronged spouse sometimes attempts to claim that the employer is liable to him or her for alienation of affections. The only reported alienation case brought against a North Carolina employer is Mercier v. Daniels, a 2000 North Carolina Court of Appeals decision. In this case, the Merciers ran a U-Haul franchise.  Mr. Mercier claimed that Ms. Mercier left him for a U-Haul area field manager. In addition to suing the manager, Mr. Mercier sued U-Haul, claiming that the company was vicariously liable for its employee’s behavior.

The trial court granted summary judgment to U-Haul, concluding that it had neither authorized nor ratified the affair. Mr. Mercier appealed, alleging that the affair resulted from the area manager’s assigned job duties, and that U-Haul failed to intervene when it should have known that the affair was continuing.

The Court of Appeals affirmed summary judgment for the defendant, but did not close the door on alienation of affection claims against North Carolina employers. First, the court said that the affair was clearly outside the scope of the manager’s duties for U-Haul, and therefore, the employer was not vicariously liable for his behavior. However, the ratification issue presented a closer factual question. If an employer has access to all material facts relative to a wrongful act by its employee, it can be found liable for the employee’s behavior if its subsequent actions ratify that act.

Mr. Mercier alleged that U-Haul knew of the close and frequent contact between its manager and Ms. Mercier, yet allowed the manager to continue his work contact with Ms. Mercier. The court, however, concluded that the company had no direct knowledge of the affair, and therefore could not have ratified the manager’s behavior. The Court of Appeals did not take the next step in its analysis and state that employers can never be held liable for ratifying an employee’s adulterous affair. Given clear knowledge of the affair, an employer that fails to intervene to stop an employee from using work relationships or activities to continue the affair could be found liable for alienation of affections.

In the 15 years since Mercier was decided, no North Carolina appellate court has found an employer liable for alienation. However, persons involved in contested divorce proceedings occasionally sue or at least threaten to sue their spouse’s employer for ratifying a workplace affair. Employers have multiple business reasons for intervening in co-worker relationships that create conflicts or other problems in the workplace. The possibility of an alienation of affections lawsuit, even if remote, provides another reason for not turning a blind eye toward an employee’s adulterous affair.