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Employment Law/Pregnant coworker will show soon/legality


My coworker and I have been dating for 10 years. We are both healthcare professionals that work in the SAME dept with the SAME Shift Hours in NY.

We are both UNION staff,and neither of us has any supervisory role-we're at the same level. Both get excellent evaluations each year. We are NOT open with our relationship, though I believe most of the dept, including most mgrs "know" about us. However,
none have ever said anything.

My "coworker" is now 2 months pregnant(we're very happy). I'm concerned however, on what can/will happen next. She wants to have the baby while still employed by the hospital, And use her accrued sick time for a few months maternity leave. I'm concerned,when she declares her pregnancy,
the dept head may inquire formally about our relationship,and ask one of us to leave, could this be legal?

1.We are not married,though we've lived together for 7 years.Our HR dept website does not mention a "no couples in the same dept policy". Infact, nothing in the online HR policy mentions any antifraternization,nepotism,or dating policy whatsoever.
Could they legally inquire about our relationship? Could I just say I'm not comfortable discussing personal matters. As far as I'm concerned, we our just roommates :)

2.Would the employer have to have a clear and well advertised policy on "couples in the same dept" to be legally able to force someone to resign. My
coworker would not have any benefits if she left her job now, remember, we are not married. Could this be considered pregnancy discrimination?

3.I would also like to take some time off too when we have the baby. I realize I can apply for Paternal FMlA, however, would I be legally admitting to
having a formal relationship with my coworker now??. Or do I just call in sick for a few days instead without acknowledging the baby, though, it will be strange when allot of coworkers would want to congratulate us.

As you can see, I'm very interested in what our options are, and what the employer can do legally. At a minimum, want my "baby's
mom" to be able to finish off her time at the hospital and be able to use her accrued sick time for maternity leave. Apparently, she would have to
return to the job after maternity leave and give 30 days notice if she was going to resign or possibly be liable for some health insurance premiums during unpaid leave i believe.

When I inquired from a union delegate, pretending to have a uncle apply for a job in our dept, he said the hospital "doesn't" like family working together,but i told him didn't see this listed in the HR policy/manual online, he said they probably have some policy somewhere?
Also, about 7 years ago, prior boss asked couple that was getting married,(they were open) one of the had to resign after they got married,no problem for them, he was leaving anyway.



The New Jersey Law Against Discrimination prohibits discrimination on the basis of marital status, among other things, but there are no court cases or regulatory rulings in NJ which would say clearly that an employer cannot have a policy such as you believe might be the case here. I cannot find anything else in state law, and there is no federal law, which would prohibit such a policy. I think it would be bad employee relations, no pun intended, but that doesn't make it unlawful.  If they do have such a policy, they can lawfully inquire about the relationship.

Based on what your union rep told you, I am guessing your labor agreement does not address this issue.   But since you are represented, your union has the legal right to require the employer to produce copies of any policy regarding personal relationships between employees, and I would suggest you ask them to do that.  You need to be up front with your union about all the facts to enable them to represent you appropriately.  Your labor contract most likely contains a grievance and arbitration procedure which protects you both from being disciplined or dismissed without just cause, but you need to know what the policies and rules are before you know what the employer can enforce.

The law also prohibits pregnancy discrimination, but that would only apply if adverse action is taken on account of the pregnancy itself, not just based on a policy against personal relationships among co-workers.

Certainly at some point, most likely in connection with applying for benefits and/or leave connected with the childbirth, you will need to reveal the relationship, or else you could be in a position where you create an impression that you are trying to misrepresent the truth. You don't want that, obviously. You will have to provide some kind of medical evidence to get FMLA leave to care for your partner and the child, and so the sooner you find out what the employer's policies are , the better.  So again, the first step is finding out what the policy is, if one exists.

I hope ts is helpful and that I answered all your questions.

---------- FOLLOW-UP ----------

QUESTION: Thanks for responding Frank, I really appreciate it. Always wanted to become a lawyer myself, but landed in the healthcare field instead.

Not sure if it makes a difference, but we work in New York and live in NJ.

We will wait till she starts showing till we inquire with the HR dept or Our union, both department personnel have very loose lips :) She thinks she can "hide" her baby bump till about 16-18 weeks, guess we'll see.

Besides, shouldn't "that" policy(if it exists) be readily available to all employees to read,(they have every other policy accessible via online intranet). Do they not bear the burden to have made that sort of policy well know? And if not, can they apply it retroactively?

In addition, if we're not technically married, i'm assuming we're not considered family ?? I'm thinking if family cannot work together in the same dept, fine no problem, we don't have to get married, what are your thoughts here?

Checked union contract, we have binding arbitration as you guessed.

What we be their just cause, we both perform our jobs very well..
If you were an arbitratort, how would you consider this case?? what else would you want to know?



Thanks for the follow-up.  If the worst case were to happen and you were dismissed for some reason (more below on that, in response to your inquiry about just cause), I'm pretty sure you would be able to bring suit in New Jersey as long as the facility where you work treats patients from that side of the river.  Litigation lawyers would know that better than I, but since you do have the right to arbitration, it probably doesn't matter anyway.  One of those "law school exam questions" we lawyers love to talk about.  

You are correct in pointing out that the employer should make all of its policies readily available to all employees, if for no other reason than the need to prove an employee was aware of a policy or rule before he or she can reasonably be expected to follow it!  All arbitrators would uphold this standard, as it is part of the traditional formula for defining "just cause."  There is an excellent law review article you can get free online which is probably the best explanation I've seen of what "just cause" should mean, and the procedural factors it outlines, which in turn are quoted from a famous 1964 arbitration decision, are frequently cited by labor and employment arbitrators in their decisions.  Here is the URL:

Most arbitrators try to follow the approach described in this article in deciding "just cause" cases on dismissals and other discipline.  In any event, one of the very first things an employer will need to prove to support disciplinary action against an employee for violating a company policy or rule is that the policy or rule was known to the employee at the time of the alleged violation. (In this sense, it is not acceptable for an employer to apply a policy retroactively, i.e., to actions by an employee which occurred before he or she was ever made aware of the policy or rule.) So if an employer uses an uncommunicated policy as a basis for discipline, the company is highly unlikely to win the case in arbitration.  The only likely exceptions to this might be where a rule is so obviously a requirement for a well-functioning workplace that no reasonable person would think they could violate it without facing discipline.  For example, an employer might not have any written policy saying that employees are prohibited from physically assaulting one another on the job, but unless the workplace in question is one where such conduct regularly occurs without anyone being disciplined, I doubt that any good arbitrator would allow an employee who punches his co-worker (or his supervisor!) in the face to get off without any disciplinary action.

As for whether you are "family" or not since you are not married, this may or may not be relevant depending on what the employer's policy, if it actually exists, says about who and what it covers.  If the policy simply bans employment of "spouses and immediate family" in the same department, for example, and doesn't say anything about unmarried couples who share the same residence, then your situation should not be covered.  On the other hand, it could contain a broader definition that would apply to your relationship.  Interestingly, if the policy only prohibited married couples from working together, it likely would be found to discriminate on the basis of marital status, which is unlawful in New York as well as in New Jersey.

Last, you asked how I would view this case as an arbitrator.  I would apply the traditional factors of just cause as described in the law review article I linked above.  We'll assume that you and/or your partner are dismissed on account of your personal relationship.  To defend that action successfully, the employer would have to prove (1) that it has a policy which prohibits co-workers from being married or living together as a couple without being married, and which clearly states the potential consequences of violation; (2) that the policy has been communicated to all employees; (3) that it has been applied consistently over time to persons in similar circumstances; (4) that the policy is reasonably and clearly related to a legitimate business purpose of the employer, and what that purpose is; (5) that you and your partner were given a reasonable opportunity to take action on your own to come into compliance with the rule, such as applying for a transfer to a different department, and (6) that the employer had no other reasonable option for addressing the problem. In other words, the employer would have to convince me that "the punishment fit the crime."  Your performance history and lack of any prior disciplinary problems would be important to this last factor.

If the employer were to fail to convince me of any one or more of these factors, in light of all the evidence presented by the employer and the union, I would not uphold dismissal.

Again, I hope this is helpful and wish you the best in resolving the situation, and congratulations on your parenthood!  

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Frank C. Magill


I can answer questions about any U.S. labor or employment law question. I cannot answer questions about non-US law. I am not a specialist in employee benefit law (ERISA and HIPAA) or Workers' Compensation law, but will do my best to point questioners toward good resources availabe online. Expertise includes, without limitation, EEO/Affirmative Action/Employment discrimination (Title VII, Age Discrimination in Employment Act, Americans With Disabilities Act, GINA, Fair Credit Reporting Act as applied to employment); Fair Labor Standards Act; Texas labor code; Family Medical Leave Act; employee compensation; discipline and dismissal; force reductions, severance pay programs and administration; collective bargaining, union representation, grievances and arbitration, National Labor Relations Act and National Labor Relations Board; employee handbooks; staffing; dispute resolution outside of traditional labor agreements; employee communications; employment policies and compliance programs; codes of ethics; employment or labor litigation.


30+ years experience as corporate counsel for a Fortune 100 telecom company, specializing in labor and employment law issues. In addition to providing day-to-day advice to my company's internal HR leadership and staff, I've represented the company in numerous labor arbitration cases and at the bargaining table.

Texas, Illinois and Missouri state bars

J.D. 1979, Harvard Law School. B.A., Summa Cum Laude, 1976, Illinois Wesleyan University.

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