Employers sometimes have the right to investigate an employee's personal life when challenging a work-related claim, but the circumstances in which this is allowed are limited. Certainly, employers should not be allowed to question or harass an employee about the nature of their divorce.
Earlier this month, an important appeals court ruling was a "victory for employee privacy rights," according to an attorney representing former pilots for Continental Airlines. In 2009, nine pilots were wrongfully terminated and sued by Continental.
The airline alleged that the pilots engaged in "sham" divorces as a way of allowing their ex-spouses to gain access to their lump-sum pensions before the pilots retired. Afterwards, they remarried their partners, according to the airline.
In all cases, the pilots' spouses were entitled to most or all of their retirement benefits after the divorce. And a federal law allows an ex-spouse to be paid their former partner's pension benefits before that person retires. Continental alleged that the divorces only occurred in order to take advantage of this law.
The 5th Circuit Court of Appeals disagreed with Continental, and upheld a lower court ruling that an employer cannot investigate whether an employee's divorce is genuine, nor can they consider why an employee got divorced.
Continental has not announced its next move, but an attorney representing five of the pilots says that they are suing Continental for wrongful termination and for interfering with the employees' pension rights.
If a court ruled that a divorce was phony, a retirement plan administrator could conceivably recover pension payments. However, it is not up to an employer to decide what constitutes a "real" divorce. Furthermore, such an invasion of privacy is in bad taste.
Source: ABC News online, "Pilots Win 'Sham-Divorce' Case Against Continental," David Koenig, 20 July 2011