Question:

I am a supervisor at a medium sized company in Salinas. About a year ago, I began dating an employee of the company who works in a unit that I do not supervise. Recently, my manager asked me if I was dating an employee of the company and told me that I should not be dating a co-worker because it is against company policy. I do not feel that my personal life is any of my employer’s business. Does my employer have any right to know the nature of my personal relationship with my co-worker?

Answer:

Romantic relationships between co-workers present potential problems for employers and employees. California courts have recognized that romantic relationships between management and non-management employees present issues of potential sexual harassment in the workplace. California law also recognizes that employers have legitimate interests in avoiding conflicts of interest between work-related and family-related obligations, and in reducing favoritism or even the appearance of favoritism.
For these reasons, California law permits employers to adopt policies limiting romantic relationships between management and non-management employees. These employees typically require employees to report to their supervisor if they become involved in a romantic relationship with a co-worker so the employer can take steps, if necessary, to avoid potential or actual conflicts of interest.

As you pointed out, the employer’s interests are sometimes at odds with the employee’s privacy interests. The California Constitution, Article I, Section 1, provides an inalienable right of privacy to all people. But, the right to privacy is not absolute. California courts have held that an employee who alleges an invasion of privacy must prove:

  • a legally protected privacy interest;
  • a reasonable expectation of privacy in the circumstances; and
  • conduct by the employer that constitutes a serious invasion of privacy.

The recent case of Barbee v. Household Automotive Finance Corporation discussed this right of privacy in the context of a romantic relationship between co-workers. The court did not decide whether employees have a constitutional privacy interest in pursuing an intimate or sexual relationship with a co-worker. Rather, the court found that, based on the facts of that case, Mr. Barbee did not have a reasonable expectation of privacy in pursuing an intimate relationship with a co-worker because of his employer’s written policy. That policy required any supervisor who wanted to maintain an intimate relationship with a subordinate to bring the matter to the attention of management to allow management the opportunity to take appropriate action to avoid a conflict of interest. In the Barbee case, Mr. Barbee’s supervisor had warned him that “inter-company dating was a bad idea,” and that Mr. Barbee or his romantic interest would have to leave the company if their relationship continued. When the company discovered that Mr. Barbee did not end his relationship with the co-worker, he was terminated. The court ruled against Mr. Barbee, holding that because of his employer’s written policy and verbal warning, he did not have reasonable expectation of privacy in pursing an intimate relationship with his co-worker.

Mr. Barbee also pursued his claim under California Labor Code section 96(k), which prohibits employers from taking adverse employment actions against an employee for any “lawful conduct occurring during non-working hours away from the employer’s premises.” Mr. Barbee argued that his romantic relationship with a co-worker was lawful and conducted during non-working hours away from the workplace. The Barbee decision is important because the court held that Labor Code section 96(k) does not set forth an independent public policy that provides employees with any substantive rights. It merely establishes a procedure by which the Labor Commissioner may assert, on behalf of employees, recognized constitutional rights. The court reasoned that the legislature’s purpose in enacting section 96(k) was to permit the Labor Commissioner to assert employee claims that have an independent legal basis. The court explained that Labor Code section 96(k) does not create any new public policies, rather, it authorizes the Labor Commissioner to “vindicate existing public policies in favor of individual employees.” So, the Barbee court concluded that in order to prevail on a claim under Labor Code section 96(k), Mr. Barbee was required to establish that he was terminated for asserting civil rights guaranteed under Article I of the California Constitution.

Your employer does have a legitimate and legally recognized interest in being informed about your relationship with your co-worker due to potential conflict of interest and sexual harassment liability issues. You do not state whether or not your employer has a written policy governing conflicts of interest or romantic relationships between co-workers. It would be prudent to explore your employer’s policies in this regard and to abide by them. Many employers do not prohibit such relationships outright, but wish to be informed so they can monitor sexual harassment and conflict of interest issues.
– – – – – – – – – – – – – – – – – – – – – – – – – –
Back to Menu- Work Place Law 2004 Articles