Gary Glaser Quoted in Inside Counsel

An article in the April issue of Inside Counsel ("N.J. Company Held Liable for Employee’s Porn Activity") reviews the liability exposure for employers whose employees access pornographic Web sites during the work day, what kind of policy employers need to prevent exposure and whether or not the NJ court decision will restrict use of computers for personal reasons.

"When an unnamed employee was sitting at his desk at XYC Corp., he was supposed to be doing accounting work. Instead, he was accessing pornographic Web sites depicting bestiality, necrophilia and images of children. Although several of his co-workers and supervisors at the New Jersey company noticed something strange about the way he suddenly minimized screens when others walked by his cubical and discovered some suspect Web addresses in his list of visited sites, no one investigated to see if he was violating the law by viewing child pornography. Then, more than two years after co-workers first noticed his suspicious behavior, the employee sent nude photos of his 10-year-old stepdaughter to a child porn site using XYC’s computer.

"After the employee was arrested on child pornography charges, the girl’s mother sued XYC for failing to uncover and report his illegal acts. Her victory in Jane Doe v. XYC Corp. puts New Jersey employers on notice that they need to take action if they have any reason to believe an employee is using company computers for child pornography activities.  While some contend the decision opens up a Pandora’s Box of employer liability for other criminal acts by employees using a company’s computer system, others say the decision was written narrowly and applies only to child pornography.  In any event, the case is causing a stir among in-house attorneys because it breaks new ground in assessing employer responsibility for actions by an employee that harm a third party. It also raises questions about the extent of an employer’s duty to monitor employees’ Internet usage for possible criminal activity."

"While previous case law has established employer liability for injuries one worker causes a co-worker via computer, such as e-mail messages sent as racial or sexual harassment, this case goes a step further by extending liability to acts that harm a third party - - a victim who is not an employee, says Gary Glaser, a partner in Seyfarth Shaw’s New York City office.  He cites as another hypothetical example an employee using a company computer to set up illegal drug deals outside the workplace. Using XYC, the parents of a child who dies from an overdose could have a case against the corporation for failing to investigate and report the illegal activity, he says.  But Glaser points out that the court was careful to cite the many occasions on which XYC had reason to question whether the employee’s conduct crossed the line into illegal activity by accessing child porn, rather than just adult porn sites.  “I don’t see this as a strict liability case,” he says. “The employer had a duty because it was on notice. The level of notice here was significant - - a lot of people knew.”   Glaser says his message to clients is “be vigilant.” But, he adds, “It doesn’t mean that you have to implement unduly burdensome practices that would constantly monitor employee activity on the Internet. The duty to investigate is triggered when you have reason to believe the employee may be engaged in an illegal activity.” '