Employee Internet Misuse: How Failing to Investigate Pornography May Lead to Tort Liability

• Jurisdiction: United States,Federal,New Jersey
• Publication year: 2007
• Citation: Vol. 4 No. 1

Shidler Journal of Law, Commerce & Technology Volume 4, Issue 1Summer 2007

Corporate & Commercial

Cite as: Jamila Johnson, Employee Internet Misuse: How Failing to Investigate Pornography May Lead To Tort Liability, 4 Shidler J. L. Com. & Tech. 1 (Jun. 6, 2007), at [http://www.lctjournal.washington.edu/Vol4/A01Johnson.html]

Employee Internet Misuse: How Failing to Investigate Pornography May Lead To Tort Liability

Jamila Johnson1

©2007 Jamila Johnson

Abstract

This Article addresses a New Jersey appellate court's holding which suggests that employers have a common law duty to investigate online misconduct by their employees. In Doe v. XYC Corp., the Appellate Division of the Superior Court of New Jersey held that an employer has a duty to act when (1) it knows that an employee's use of the Internet would endanger a third person; and (2) it has reason to believe that it may discipline the employee for online activities in the workplace. The court stated that, under this duty to act, an employer must investigate, discipline, and inform authorities of the danger. This Article discusses the implications of the case for employers.

Table of Contents

IntroductionInvestigating ViolationsApplication of Restatement (Second) of Torts § 317Doe v. XYC: Expanding an Employer's Duty Under Restatement (Second) of Torts § 317Implications for EmployersConclusion

Introduction

[1] In late 2005, a New Jersey appellate court held that an employer who has knowledge that its employee is viewing child pornography2 on a company computer has a duty to investigate and act lest the employee's action lead to harm to a third party.3 Individuals generally have no duty to act absent a special relationship with a victim or with an aggressor.4 A New Jersey appellate court in Doe v. XYC Corp examined this legal doctrine and assessed whether employers have a duty to monitor employee Internet use to prevent employees from causing harm to third parties. The court used the analysis of vicarious liability in The Restatement (Second) of Torts in order to find that employers have a duty to police company computers when suspicion of wrongdoing arises. The court's holding thereby expanded the limited circumstances in which an affirmative duty to act arises. Despite its limited effect as precedent, this case illustrates how at least one appellate court has applied common law doctrine in a novel situation involving use of technology.

Investigating Violations

[2] In late December 2005, a New Jersey appellate court ruled that a trial court had erred when it granted a summary judgment motion in favor of a company in a negligence suit. 5 The mother of a girl who had been sexually assaulted by her stepfather filed the suit against the stepfather's employer.6 The mother alleged that the company had an Internet use policy and had notice that the employee, the stepfather, had viewed pornography on workplace computers at the defendant company's 250-person headquarters.7 The argument followed that: had the company further investigated its suspicions, the company would have discovered that its employee was uploading photos of his minor stepdaughter onto child pornography websites. Additionally, the plaintiff argued that these photos were taken without the daughter's knowledge, and, had the company investigated and acted in a timely manner, the abuse that soon followed would never have happened.8

[3] The defendant employer is alleged to have made several mistakes over the years, all of which could easily be repeated by other employers. The employer allegedly did not take the complaints of co-workers seriously and failed to use the information gathered by monitoring the employee's Internet use to start a timely investigation.9 Specifically, the plaintiff's complaint states that XYC's suspicions of the employee's online habits had been evident for about four years.10 During these four years, employees in the Information Technology department ("IT department") reviewed computer reports and noticed that the employee in question had been visiting pornographic sites, but they did not inform supervisors.11 Further, the employee's immediate supervisor reported suspicions of Internet misuse to the IT department - suspicions that were again confirmed by this unit.12 When tracking the employee's Internet activity, the IT department found more evidence that the employee accessed bestiality and necrophilia photos as well as pornographic websites with "teen" in the title13 from his company computer.14 The department, however, took no action because the head of the department stated that tracking website usage of individual employees was against company policy15 and that nothing could be done with the information gathered.16

[4] On other occasions another co-worker reportedly complained to company supervisors that the employee acted suspiciously and constantly shielded his computer screen.17 The co-worker also reported concerns about the employee viewing pornography.18 At that time, management took no action.19 A year later, a co-worker still concerned that he was looking at pornography, accessed the websites in the defendant's Internet search history. She brought the records to an immediate supervisor.20 The supervisor subsequently went into the employee's cubicle, found the same evidence and brought it to management's attention.21

[5] The supervisor allegedly discussed the matter with the employee and thought the employee had stopped, but several months later saw evidence of misbehavior.22 The supervisor told no one else of his continuing suspicions before going on vacation in June 2001.23 When he returned later that month he found that the employee had been arrested on child pornography charges on June 21.24

Application of Restatement (Second) of Torts § 317

[6] The court, in Doe v. XYC Corp., applied a section of the Restatement (Second) of Torts related to vicarious liability to determine that there is a duty of care to third parties who may be injured by an employee's Internet use. 25 That duty of care requires an employer, at the very least, to investigate suspicions that arise regarding the possibility of misbehavior that is illegal or inherently dangerous to third parties.26

[7] Generally, a person has no duty to control the conduct of another person absent a special relationship.27 Such a relationship exists in an employment situation, and an employer has a duty to control the actions of employees when those actions are within the scope of employment.28 The law has often made an exception to this general principle so that, in certain circumstances, an employer has a duty to control actions outside the scope of employment.29

[8] The Restatement (Second) of Torts § 317 provides an exception to the "scope of employment" principle. This section of the Restatement is most often cited in situations such as: "X" is an employer and allows employee "Y" to drive a company car for personal use. X knows that Y has a poor driving record and tends to cause many car accidents. Y then causes an accident injuring several people and causes property damage. Section 317 specifically states:

[9] Duty of Master To Control Conduct Of ServantA master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if(a) the servant(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or(ii) is using a chattel of the master, and (b) the master(i) knows or has reason to know that he has the ability to control his servant, and(ii) knows or should know of the necessity and opportunity for exercising such control.30

[10] Courts have interpreted this opening segment of Section 317 of the Restatement to impose a duty of reasonable care on employers to control their employees in situations where an employee may cause bodily harm to third parties. Many states read § 317 to apply only to physical injuries caused by an employee as suggested by the plain language of the Restatement.31 Minnesota law, for example, finds the duty "unambiguously limited to preventing an employee from inflicting personal injury upon a third person" and does not extend an employer's duty to any other form of injury.32 However, it should be noted that a multitude of cases involving the § 317 employer duty have emerged in discrimination and sexual harassment cases where the plaintiff presents a theory of negligent retention involving physical manifestations such as lack of sleep or mental...