Trends usually start in California, or so we on the Left Coast would like to believe. New Jersey, however, proves this adage wrong with a recent employment law decision that requires employers to stop an employee's internet porn surfing.
The Appellate Division of the Superior Court of New Jersey decided, "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. No privacy interest of the employee stands in the way of this duty on the part of the employer." Here, the employee's wife sued the company for allowing her husband's to upload a picture of their naked daughter to a child pornography site, and the appellate court reversed the trial court's decision dismissing the case. The trial court found that the employer had no such duty to monitor its employee's internet surfing, but the higher court disagreed.
The case will now proceed to trial. It's a tough standard to hold employers to, and most employment lawyers have decried the outcome of the case because of the extra burden it places on employers. In a case of bad facts make bad law, though, you might not be surprised at the outcome given the involvement of child pornography. That subject is an easy target for courts -- imagine the civic backlash if the court hadn't taken such a step to protect the child at risk. What makes it doubly troubling, however, is the involvement of the child's stepfather.
Even so, in this case, the employer knew that the employee was visiting porn sites, yet apparently did nothing affirmative to stop the employee's surfing, except to warn the employee to stop. The employer admitted that it had the software and technical capability to "turn off" the employee's access to the pornographic sites, but did not do so. That fact was most likely the tipping point for the court's decision, but if you have specific questions about this case, you should contact a New Jersey lawyer. According to the Court's opinion, the company had a policy not to monitor employee's computers, but at the same time, it had received complaints from other employees about the husband-employee's viewing of pornographic images on his computer.
This type of case hasn't yet been addressed by California courts, but there's no reason to doubt that if a similar set of facts came in front of a court here, the decision would likely be the same. While MIPTC won't predict the outcome of the New Jersey case, a case like that here would have a difficult time overcoming the burden of proof to show proximate cause of the damages to the couple's daughter since some of the same activity happened on their home computer.
Nonetheless, employers may want to review their internal policies on privacy and pornography.