Employer Liable For Letting Worker View Child Pornography In The Workplace

Published February 21, 2006

In one of the first cases to deal with the viewing of child pornography in the workplace, the New Jersey Appellate Division ruled that a company could be liable for damages suffered by innocent third parties — which can be anyone, not just a child — where the company failed to investigate reports that an employee was viewing pornography online at work.

Only after the employee was arrested on child pornography charges did his employer terminate him. Much too little, much too late, ruled the court. Especially when you consider these facts.

• The employee's immediate supervisor, a manager, and the director of network and PC services were all aware of the suspicion that the employee used a company computer to visit sexually explicit websites. Even co-workers complained about the employee's computer habits.
  
• An investigation into these complaints uncovered that he visited child porn sites. The company only told him to stop, but he didn't. He eventually downloaded more than 1,000 pornographic images on his work computer, and sent three nude or semi-nude photos of his 10-year-old stepdaughter to a child porn site from his work computer.
  
• The company's Internet usage policy explicitly stated that employees were permitted to "access sites, which are of a business nature only," and reserved the right to inspect computers. Ironically, a top IT exec warned a supervisor against monitoring the employee's computer use, believing company policy prohibited such monitoring.

When an employer has actual or imputed knowledge that an employee is viewing child porn on his/her work computer, said the court, the company has a duty to act, either by terminating the employee or reporting his/her activities to law enforcement authorities. (Doe v. XYC Corp., NJ App. Div., No. A-2909-04T2, 2005)

Monitoring Is A Must

If you think that your employees would never view online porn during the course of the workday, think again! According to a report by Delta Consulting and PixAlert, half of America's Fortune 500 companies have dealt with at least one incident of online pornography between June 2004 and June 2005. In 44% of these instances, the offenders were terminated.

Both the New Jersey Appellate Division's ruling and these stats underscore the importance of monitoring employee Internet browsing. Here are some suggestions to make sure you've got your monitoring bases covered.

• Create a policy. Explicitly state that the company has the right to monitor employee usage of company computers. Spell out what types of sites are off-limits, as well as when workers are allowed to surf the Web for personal use, and the consequences of Internet abuse. Also, reiterate that employees should have no expectation of privacy when it comes to any of the company's electronic equipment.
  
• Communicate the policy. Make sure IT is well aware that monitoring is permitted.
  
• Train employees on the proper use of the Internet. Go over the company's policy and explain the negative effects misuse of the Net can have on the company (e.g., liability for sexual harassment).  Make sure employees understand that using the Internet improperly will lead to discipline.
  
• Implement some type of protective measure, such as blocking software. Alternatively, use a device that tracks employee Internet usage and tell them that you're doing so.
  
• Actively monitor Internet use. If you suspect an employee of violating your Internet usage policy, key in on his/her Web activity. If there are no suspicions of abuse, randomly monitor use by all employees.
  
• Take action when a policy violation occurs. Don't hesitate to contact law enforcement officials, if necessary.

Related Topic(s): Privacy Policy Guidelines/E-mail, IM, Web Surfing, And Blogging