10.25.2017

Ever glimpsed a fragment of a lewd image while passing your employee’s computer screen?  Ever notice that he quickly minimizes it and shields the screen?  If he is viewing pornography in the workplace, you may be liable for more than you think.

As a New Jersey employer, you should be aware that if you are on notice that one of your employees is using a workplace computer to access pornography, you have a duty to investigate the employee’s activities.  You also must take prompt and effective action to stop the activity lest innocent third parties be harmed.  These innocent third parties include not only other employees in your workplace, but could also include parties outside of it.

In one New Jersey case, an employee was caught viewing pornography on his workplace computer.  The first time he was caught, the company had a policy in place that prohibited monitoring or reporting internet activities of employees, and the employee’s supervisors were admonished by upper management for reporting the employee’s improper activity and disciplining him.  However, the employee was told to stop accessing pornography at work.  A few years later he was again caught looking at pornography on his work computer . By that time the employer had changed its policy to state that employees had no right to privacy in their internet activity at work.  Again, the employee was told not to access pornography on his computer.  For a third time, the employee was caught viewing pornography, although this time, he was suspected of viewing pornography involving children and not just adults.  Nevertheless, the employee was not terminated or disciplined.

During his employment, the employee married a woman who had a ten year old daughter.  He began molesting and taking lewd photographs of his step-daughter.  At work, he sent those pictures to pornographic websites.  Police soon discovered the employee’s criminal behavior and arrested him.  The child’s mother then instituted a lawsuit against not only her then ex-husband, but the employer as well.

The Court held that the employer was on notice of the employee’s activities and had a duty to investigate.  The Court noted that the employer gained “actual or implied knowledge” that the employee was viewing child pornography when it reviewed the employee’s internet history, which indicated that he was accessing pornographic material involving children and/or underage teenagers.  The Court concluded that this knowledge imposed a duty on the employer to report his activities and take steps to stop the illegal activity.

The Court stopped short of ruling that the employer was liable for the molestation of the step-daughter.  However, it did rule that the employer could be liable for the harm caused by the employee’s sending of pornographic pictures of his step-daughter to be published on websites.  The Court advised that in order to find the employer liable, the girl’s mother had to show that the child suffered harm because of the internet transmission of her photos.

TAKEAWAY: failing to investigate pornography in the workplace could snowball into much greater liability for an employer than may be anticipated. 

BLOG DISCLAIMER

The postings on this blog were created for general informational purposes only and do not constitute legal advice or a solicitation to provide legal services.  Although we attempt to ensure that the postings are complete, accurate, and up to date, we assume no responsibility for their completeness, accuracy, or timeliness.  The information in this blog is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.  Readers should not act upon this information without seeking professional legal counsel.

This blog may contain links to independent third party websites and services, including social media. We provide these links for your convenience, and you access them at your own risk.  We have no control over and do not monitor the content or policies (including privacy policies) of these third-party websites and have no responsibility for, and no liability with respect to, their content, accuracy, or reliability.  Unless expressly stated, we do not endorse any of the linked websites or any product, service, or publication referenced herein or therein.  We will remove a link to any site from this blog upon request of the linked entity.

We grant permission to readers to link to this blog so long as this blog is not misrepresented. This site is not sponsored or associated with any other site unless so identified.

If you wish for Wilentz, Goldman & Spitzer, P.A., to consider representing you, please obtain contact information from the Contact Us area of this blog or go to the firm’s website at www.wilentz.com.  One of our lawyers will be happy to discuss the possibility of representation with you. However, the authors of Wilentz blogs are licensed only in New Jersey and/or New York and do not wish to represent anyone who viewed this site in a state where the site fails to comply with all laws and ethical rules of that state.

PRIVACY POLICY