Court Requires Employer to Take Affirmative Action Regarding Pornography in Workplace

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May 18, 2006

In Doe v. XYC Corporation, 887 A.2d 1156 (2005), a coworker notified management officials that an employee had been visiting pornographic sites. However, no action was taken. Some time later, several coworkers complained the same employee was again viewing pornography on his computer. Again, no action was taken. The following year, another coworker complained about the same issue. A management official then checked the employee’s computer and discovered the employee had visited various pornographic sites, including several that specifically addressed children.
The employee was told to discontinue his activities. However, several months later, a manager saw he was again using his office computer to access pornographic sites. The employee was subsequently arrested on child pornography charges. The charges included allegations he had transmitted nude pictures of his ten year old stepdaughter over his office computer to a child porn site. The employee later pled guilty to criminal charges relating to child pornography.
The employee’s wife – who had divorced him – then brought suit against the employer for failing to investigate and report the employee’s viewing of child pornography, which may have prevented the action the employee took with regard to the stepdaughter. The lower court granted summary judgment for the employer but, on appeal, the Appellate Court reversed. The Appellate Court stated:

The Defendant had a duty to report employee’s activities to the proper authorities and take effective internal action to stop those activities . . . The Defendant was under a duty to exercise reasonable care to stop employee’s activities, specifically his viewing of child pornography.

After the Court’s decision, the parties reached a confidential settlement in the case.
The Doe case makes a very strong point – if an employer finds that an employee is illegally using computers and the internet system, the employer should report the employee to authorities. For example, if an employee is illegally using a computer for viewing child pornography, the matter should be reported to law enforcement. If an employer finds that an employee is gambling illegally by placing bets through a bookie or acting as a bookie on the internet, the employer should report the employee to law enforcement.
Another lesson to be learned from Doe is that an employer should have in place a computer (i.e., email, internet, etc.) policy which puts employees on notice that they have no right to privacy with regard to use of the employer’s computer. The policy should state the employer reserves the right to search computer material at any time for any reason, including to determine whether the employee is violating the law or the employer’s policy. The policy should also note additional items such as the purposes that computers and the internet can be used, prohibitions with regard to its use, and the consequences of violations. Finally, the policy should include a procedure by which an employee can report misuse or a violation of the policy to management.
If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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