From
The KDDK Advantage - June/July 2006
Internet Pornography: Growing Problem
in the Workplace
By Jon Goldman
A New Jersey state appellate court
recently found an employer negligent for failing to take
action against an employee known to view pornography on
his at-work computer. Shortly before his arrest, the employee’s
at-work computer was searched by the police. Among pornographic
material discovered was an image of the employee’s young
stepdaughter. In checking the employee’s web viewing history,
the police discovered numerous pornographic websites.
The stepdaughter’s mother sued the employer for negligence,
alleging that it knew or should have known its employee
was using company systems to view, download and participate
in child pornography and had a duty to report its employees
to the proper authorities for crimes committed on its
property during working hours.
The trial court granted summary judgment
(judgement without a trial) for the employer and this
decision was reversed on appeal, in part because of testimony
that while company officials may not have known the extent
of their employee’s activities, they knew he visited pornographic
websites and had counseled him on this activity. The employer’s
Network Administrator testified that he was able to use
the network’s daily log system to identify pornographic
websites visited by the employee but after reporting his
findings to his supervisor, was instructed not to investigate
any further. The appellate court ruled that if the employer
had properly investigated the employee’s activities, it
would have discovered the pornography and once it understood
the scope of the employee’s improper activity the employer
would have had an obligation to report the employee to
law enforcement authorities. Jane Doe v. XYC Corp., 382
N.J. Super. 122, 2005 N.J. Super. LEXIS 377
While no parallel case exists in the Tri-State area, our
federal courts have addressed the misuse of the internet
in the context of hostile environment sexual harassment
lawsuits. Exposure to this type of lawsuit is likely to
increase in the corporate world when amendments to the
Federal Rules of Civil Procedure become effective in December
2006.
The new rules distinguish between electronically
stored information that is readily available and information
that is “not reasonably accessible.” If the plaintiff
in a sexual harassment case requests all email created
at a particular site over a three-year period, the burden
shifts to the employer to demonstrate that this information
is not readily available because it has, for example,
been deleted or stored on network back-up tapes. Nonetheless,
a court may order discovery of this inaccessible information
for “good cause” and under certain circumstances may charge
the employer for the cost of searching through this electronic
information.
However, the amendments also provide
a “safe harbor” that addresses the need in some email
systems for the automatic deletion of large volumes of
electronic documents. This safe harbor provides some protection
against a court-ordered search if a party has taken reasonable
steps to preserve discoverable information, but some information
was deleted by the routine operation of an information
system.
To help protect against sexual harassment,
employers should institute a written policy prohibiting
the inappropriate use of e-mail, Blackberry devices and
the internet. The fewer inappropriate documents that are
found among readily available electronic information,
the less likely a court may be to order the discovery
of electronic information that is not readily accessible.
For assistance in reviewing or creating
an appropriate internet usage policy, contact KDDK’s labor
and employment law attorneys at 812-423-3183 or evvlaw@kddk.com.
Jon Goldman practices employment
law, particularly employment litigation and counseling
employers on a wide variety of workplace issues.
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