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N.J. Company Held Liable for Employee's Porn Activity

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.

"What really struck me about the case is that the employer did have notice that the employee was looking at adult porn, but did not really have notice he was looking at child porn," says Philip Gordon, shareholder in Littler Mendelson's Denver office, pointing out the "Teenflirts" site referred to non-nude photos. "An aggressive plaintiff could use this case to say that if an employer does not act on lawful conduct, he could be held liable if it turns out the conduct is actually unlawful."

He adds that if courts in other jurisdictions follow this case, plaintiffs will be able to pursue a whole new genre of employment litigation holding employers responsible for the damages to victims of crimes committed by employees using corporate computers.

But Gregory Alvarez, partner in the New Jersey office of Jackson Lewis, disagrees that the potential liability stops with child porn.

"If you become aware of any improper use of a company computer, you should investigate," Alvarez says. "This is not where employers want to be. We're the police now for everything our employees do. The bottom line, from our point of view, is that you really should not look the other way when it comes to employee misconduct if it involves you in any way."

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Mary Swanton

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