Employer on notice of illicit Internet use has duty to investigate

By Christopher J. Vaz Jan 6, 2006
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In a case of first impression in New Jersey, an appellate court found that an employer who has notice that one of its employees is using a workplace computer to access pornography, possibly including child pornography, has a duty to investigate the employees activities and to take prompt and effective action to stop the unauthorized activity.

The employers failure to reasonably act may lead to responsibility for harm to innocent third parties. The court further held that no privacy interest of the employee stands in the way of the employers duty.

Sometime in 1998 or 1999, the defendants Internet services manager informed his supervisor that computer log reports showed that an employee was visiting pornographic web sites. The two directed the employee to stop the activity, but did not inform higher-ups.

Later, in 2000, the employees own supervisor became aware that the employee was visiting salacious web sites. The employer then conducted a limited investigation revealing that the employee had visited web sites such as Sextracker, Teenflirts.org, and Sleazy Dream Main Page. The logs also indicated that the employee visited bestiality and necrophilia web sites. The manager who conducted the investigation reported the results of the investigation to the director of network and PC services, who told him not to access the employees logs ever again. That admonishment was based on an interpretation of a policy that was communicated by e-mail to certain management personnel that purportedly prohibited monitoring the Internet activities of employees.

Subsequent to the limited investigation, there were additional reports that the employee was using his workplace computer inappropriately. The employee was again advised to stop his activities, and he said he would. It was determined by early June 2001 that the employee had broken his promise.

The employee was arrested on child pornography charges on June 21, 2001. It was discovered that the worker had been secretly videotaping and photographing his 10-year-old stepdaughter at their home in nude and semi-nude positions.

On June 15, 2001, the employee transmitted three photos of his stepdaughter over the Internet from his workplace computer to a child porn site. The employee admitted to downloading over 1,000 pornographic images while working for the employer.

Jane Doe, on behalf of her minor daughter, sued the employer liable for the harm caused to the young girl when the employee transmitted the nude photos over the Internet. The trial judge granted summary judgment to the employer.

The appellate court reversed, holding that with actual or imputed knowledge that the employee was viewing child pornography on his workplace computer, the employer was under a duty to act, either by terminating the employee or reporting his activities to law enforcement authorities. The court found persuasive support for its position in the Restatement (Second) of Torts 317.

First, the court found that the employer had the ability to monitor the employees Internet activities. The court noted that the case was not a criminal case and therefore the employees privacy interest did not trump the employers right to monitor his computer use at work. Moreover, the court noted that the employers Internet usage policy stated that employees were permitted to access sites, which are of a business nature only. The court also found that the employer was on notice, through its supervisory/management personnel, that the employee was viewing pornography, including child pornography, on his computer.

Doe v. XYC Corp., N.J. App. Div., A-2909-04T2 (Dec. 27, 2005).

Professional Pointer:The case underscores the seriousness of problems that can arise when employees use the Internet at work. Companies must implement Internet usage policies when they make the Internet available in the workplace. Moreover, in New Jersey employers should actively monitor employees Internet usage and act promptly when such monitoring reveals a policy violation. When an employees Internet usage may violate criminal law, an employer should promptly contact law enforcement.

Christopher J. Vaz is the principal in the Vaz Law Firm PC in Toms River, N.J.

Related article:

Workplace monitoring: Balancing business interests with employee privacy rights, Legal Report, May-June 2003.

For the latest HR-related business and government news, go daily to www.shrm.org/hrnews

Editors Note: This article should not be construed as legal advice

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