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Support for Employee Monitoring — Employer Potentially Liable for Employee Porn

Volume 6, Issue 4
March 26, 2007

There is often much debate over whether and to what extent an employer can and should monitor its employees' activities on workplace computers and what an employer should do if improper or unlawful activities are found. While we cannot address this expansive topic here, we have summarized below one court decision that certainly tips the scales of the argument in favor of monitoring.

The plaintiff in Doe v. XYC Corp., 887 A.2d 1156 (N.J. Super. Ct. App. Div. 2005) was an employee's ex-wife, who alleged that the employee had been secretly photographing his ten-year-old step-daughter in nude positions and transmitting the photos over the Internet from his workplace computer. She sought to hold the employer liable for the harm to her daughter as a result of the employee's conduct. The court held that "an employer who is on notice that one of its employees is using a workplace computer to access pornography, possibly child pornography, has a duty to investigate the employee's activities and to take prompt and effective action to stop the unauthorized activity, lest it result in harm to innocent third-parties."

In deciding whether the employer should be held liable for harm to the child, the court addressed five issues: 1) whether the employer had the ability to monitor the employee's use of the Internet; 2) whether the employer had the right to monitor the employee's activities; 3) whether the employer knew, or should have known, that the employee was accessing child pornography; 4) whether the employer had a duty to act to prevent the employee's activities; and 5) whether any failure to act caused harm to the third-party child.

The court found that the employer had both the ability and the right to monitor the employee's Internet activities. The employer maintained an e-mail and computer use policy that prohibited access to websites that were not "of a business nature" and provided for discipline for violations. The court rejected the employer's concerns that monitoring the employee's computer usage would have violated his privacy, explaining that given the employer's policy prohibiting personal use of the Internet and the accessible nature of his computer in the workplace, the employee had no legitimate expectation of privacy in his use of the equipment.

Significantly, the court further found that once the employer had notice of the employee's activities, it had a duty to take action to report his activities to the police and stop the employee "whether by termination or some less drastic remedy." The court determined that this duty arose from the public policy against child pornography and in favor of the exposure of crime. The court then sent the case back to the trial court for a determination of whether the employer's failures caused harm to the child at issue.

At a minimum, this decision demonstrates that an employer may have a duty to take action if it learns that an employee is using workplace equipment to further unlawful activity. This decision also demonstrates why reasonable employee monitoring, within the boundaries of the law, may be a prudent way to protect both employees and the general public from harm an employee may cause by misusing workplace computers. Employers seeking to establish or already using monitoring policies for computer or email usage need to ensure, however, that their policies and their practices are both lawful and reasonable. As mentioned in Volume 6, Issue 2 of theEmployer Report, the National Labor Relations Board is in the process of deciding whether employees have a right to use their employer's e-mail system to communicate with their coworkers about union or other protected concerted activity under the National Labor Relations Act ("NLRA"). As such, these types of policies and their prohibitions against "non-business" use need to be carefully crafted.

The DOE v. XYC Corp. case can be found at: http://camlaw.rutgers.edu/library

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.