Monitoring Employees – Company Liability as a Result
A. A Duty to Monitor?
Companies do not have a universal duty to monitor employee e-mails. However, companies do have the duty to take corrective action when they have actual or constructive knowledge of harassment. In some cases of e-mail or internet harassment, monitoring may be the only means of effectively investigating and disciplining perpetrators. In Blakey v. Cont’l Airlines, Inc., 751 A.2d 538 (N.J. 2000), a female pilot brought suit for hostile work environment based on sexually offensive material that was posted on an electronic bulletin board. Although the bulletin board was not maintained by Continental, the New Jersey Supreme Court reversed the lower court’s summary judgment finding, equating the harassment that occurred on the board to certain types of off-site harassment for which employers may be liable. The court was careful not to establish a universal duty to monitor employee internet activity, citing privacy concerns, but did state that companies must take affirmative steps to stop employee harassment of which they have knowledge.
According to one court, a company has a duty to take “prompt and effective” action to prevent employees from viewing child pornography if they have notice of past offenses. In Doe v. XYC Corp., 887 A.2d 1156 (N.J. Super. 2005), the wife of an employee was allowed to sue the company where her husband, while at work, uploaded pictures of her nude daughter onto a child pornography site. The company in Doe v. XYC received notice that an employee was viewing pornography on several occasions, from supervisors who reviewed his website logs and from co-workers who observed the employee acting suspiciously by shielding his computer screen. The websites frequented by the employee involved necrophilia, bestiality, and one site that specifically referenced children called teenflirts.org.
The company asked the employee to cease accessing pornography on multiple occasions to no avail. After the final meeting, in early June of 2001, a supervisor noted that the employee’s pornography viewing had started again, but did not confront him about it. On June 21, the employee was arrested on child pornography charges stemming from nude photos of his step-daughter. The victim’s mother sued the company, alleging that its negligent failure to report the employee to law-enforcement authorities and take other actions to stop the employee, caused injury to her child. The lower court dismissed the mother’s claims, finding no duty on the part of the company. The appellate court, however, reversed, holding that the company had a duty to report the employee’s activities to law-enforcement and to take effective action to stop the offensive conduct, whether by termination or lesser punishment. The appellate court’s decision, premised on its peculiar and compelling fact pattern, is unlikely to gain broad acceptance.
Companies are generally not liable from unforeseeable and unpreventable acts of their employees. In Booker v. GTE.Net LLC, 350 F.3d 515 (6th Cir. 2003), an employee of Verizon drafted and sent an inappropriate e-mail under the guise of a customer who had repeatedly complained of poor internet access. The Verizon employee sent the e-mail from a personal account of the plaintiff, Ms. Booker. Alleging that she had suffered emotional and psychological injuries from being falsely accused of sending the inappropriate e-mail, Ms. Booker sued Verizon, asserting both that Verizon negligently supervised its employee and that Verizon should be vicariously liable for his actions. In affirming the lower court’s dismissal of Booker’s claims, the Sixth Circuit held that because there was no evidence that Verizon either knew or should have known that the employee who sent the e-mail would engage in such activity, the company was not liable for negligent supervision. Moreover, the court held that Verizon could not be held vicariously liable for the tortious conduct of its employee because the employee was not acting within the scope of his employment when he drafted and sent the inappropriate e-mail.