Employer Held Liable for Employee Internet Criminal Activities

February 17, 2006 (PLANSPONSOR.com) - The Superior Court of New Jersey Appellate Division has ruled that an employer is obligated to investigate suspected criminal usage of the Internet by an employee in the workplace and take actions to stop it.

In reversing a trial court decision, the appellate court said, “We hold 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.”  

The court said the employer has this duty over any privacy issue for the employee.   It noted in its decision that the employer had a policy that stated that all messages sent or received via the company’s email system were the property of the employer.   The policy gave the employer the right to review email and internet usage of each employee and stated that the internet should be used to visit only business related sites.   In addition, a person who discovers a violation of the policy was required to notify personnel.

According to the court document, ‘Jane Doe’ filed suit on behalf of her minor daughter ‘Jill.’   Jane’s husband and Jill’s stepfather was an employee at ‘XYZ Corporation.’   The employee was arrested on child pornography charges, and it was discovered that he had been taking pornographic photos of his stepdaughter and transmitting to child pornography sites via his workplace computer.

On several occasions computer logs from the company’s IT department showed the employee was visiting pornographic sites.   IT employees warned the employee to stop visiting the sites, but did not report him to supervisors.   After a coworker complained that the employee was acting suspicious around his computer, a supervisor did look on ‘Web sites visited’ and found the employee was viewing pornography.   The supervisor did not open the site to see what type of pornography the employee was viewing, though.  

When the employee continued to use his work computer improperly, several supervisors met to discuss actions to take.   Before they could take action, though, the employee was arrested on child pornography charges.

Jane Doe sued the corporation, saying it knew or should have known that the employee was using his work computer for criminal activities.   The lawsuit also claimed that the employer had a duty to report the activities to authorities and breached its duty to do so.   Finally, the suit alleged that, because of the employer’s negligence, the employee was able to continue his activities, harming his stepdaughter.

The trial court granted summary judgment in favor of the employer and dismissed the case.   The lower court found that the employer had no duty to monitor the employee’s Internet activities.   The court said the employer acted with prudence in addressing what it knew about what the employee was doing, and that it could not conclude that the employer could have prevented the harm the employee did to his stepdaughter.

The appellate court reversed the decision, saying the employer had the ability and the duty to monitor the employee’s internet usage, and to report criminal activities.  

The opinion in Jane Doe v. XYZ Corporation is  here .