If we have an employee who is having an affair with another employee, Can we be sued and if her spouse ask why we terminated are we allowed to tell him the truth?

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If we have an employee who is having an affair with another employee, Can we be sued and if her spouse ask why we terminated are we allowed to tell him the truth?

One of these 2 employees is having an affair and leaving the office with the person they are having the affair with while the other employee is in the field. We are at a loss on what to do and do not want this disrupting our work environment. We are a very small company and the person who is being cheated on is best friends with the owner of our company. Our owner finds it necessary to terminate the other party. Said employee has only been employed for one week today.

Asked on July 27, 2015 under Personal Injury, Oklahoma

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

If there is no written employment contract restricting termination (and such restrictions are relevant to this case), then the employee is an employee at will and may be terminated at any time, for any reason, including having an affair with a co-worker. So you may legally fire her and she would have no grounds to sue you with one exception: if you treat a woman differently or worse than a man without good, non-gender-based cause, that may be illegal gender based discrimination. In this case, if you only fire the woman having the affair but not the man she is having an affair with, that may be gender-based discrimination: to be even handed, you should treat both the same (e.g. suspend or fire both). Not being even-handed could potentially expose you to a discrimination claim.

You are *allowed* to tell the spouse the truth, but it is STRONGLY recommended that you do not: doing so could interject you into divorce proceedings, if they get divorced, and be a distraction and cost to your company; if the woman claims you are lying and tries to sue you for defamation, you'd them have to defend yourself in court (and even if you win, since the truth is a defense to defamation, do you need a lawsuit?). You are best off either not saying anything or saying something neutral, like it is apparent she is not a fit for the company or is not working out.


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