Metropolitan News-Enterprise


Friday, November 21, 2003


Page 1


C.A.: Company May Fire Worker for Dating Subordinate


By a MetNews Staff Writer


An employee has no constitutional or statutory protection from being fired for dating a subordinate in violation of company policy, the Fourth District Court of Appeal ruled yesterday.

Div. One, in an opinion by Justice Cynthia Aaron, said Household Automotive Finance Corporation acted within its rights in firing national sales manager Robert Barbee after he failed to heed the company’s warning about his relationship with a salesperson who worked for him.

San Diego Superior Court Judge Kevin Enright granted Household’s motion for summary judgment, rejecting Barbee’s contentions that his termination violated his right to privacy, set forth in Art. I, Sec. 1 of the state Constitution, as well as fundamental public policy based on Labor Code Sec. 96(k).

The Labor Code provision authorizes the labor commissioner to bring “[c]laims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.”

According to the defendant’s evidence in support of the summary judgment motion, Barbee began dating Melanie Tomita in October 2000. The company’s chief executive officer got wind of the relationship, and informed Baree that “intercompany dating was a bad idea” and was contrary to the company’s conflict of interest policy to the extent that it involved an employee and his or her supervisor.

The policy required a worker in such a relationship to bring it to management’s attention so that a reassignment or other action might be taken. Several months after Barbee and the CEO spoke, however, the situation had not changed and the company’s head of personnel gave Barbee an ultimatum—either he had to end the relationship, or he or Tomita had to quit.

Barbee told his superiors he and Tomita both wanted to stay with the company, and later conceded that they “probably assumed” that meant he was going to break up with Tomita. A short time later, however, management learned that Barbee and Tomita had attended the NCAA regional basketball tournament together, using tickets supplied by a customer, and Barbee was fired.

In rejecting the constitutional privacy claim, Aaron said the plaintiff lacked a reasonable expectation of privacy in his relationship with Tomita. There are, she noted, “numerous cases in which courts have approved of restrictions on intimate relationships between employees of an organization or entity where such relationships presented potential conflicts of interest within the organization.”

Employers, she elaborated, have a legitimate interest in avoiding the appearance of favoritism and the potential for claims of sexual harassment that may arise from supervisor-subordinate relationships. Any expectation of privacy that Barbee may have had, she added, disappeared once the company warned him of the consequences of continuing the relationship.

Turning to Sec. 96(k), which was enacted in 1999, Aaron concluded that the statute does not establish a broad public policy barring employers from disciplining employees for off-hours, off-premises conduct. Reading the statute in context, the jurist said, leads to the conclusion that it was designed not to create new rights, but merely to create a new remedy for violations of existing rights.

She cited an attorney general opinion concluding that the statute did not change prior law permitting law enforcement agencies to discipline officers for off-duty conduct that conflicts with agency standards.

The case is Barbee v. Household Automotive Finance Company, 03 S.O.S. 5894.


Copyright 2003, Metropolitan News Company