Yesterday we looked at a disturbing New Jersey court decision holding that employers have a duty to investigate the activities of employees whose computers are found to contain pornography, and that employers could be held liable for failing to do so. Today we’ll explore that topic further, and take a look at policies that can shield you from liability for harm caused by employee child pornography or other contraband.
You would be wrong to think that cases involving criminal or other misuse of workplace computers are out of the ordinary. Consider these statistics from the website of law firm Smith, Gambrell & Russell, LLP:
- Approximately 70 percent of all Web traffic to Internet pornography sites occurs between the traditional work hours of 9 a.m. and 5 p.m.
- 2.5 billion e-mails per day are pornographic in nature.
- 25 percent of all search engine requests are pornography related.
- More than 75 percent of people at work report having accidentally visited a pornographic website, while 15 percent of workers report having “accidentally” visited such sites more than 10 times.
- Nearly one-third of 1,500 companies surveyed in the year 2000 terminated an employee for inappropriate Internet use.
Is your workplace contraband policy up to date? Do you even have one? If not, don’t fret. We do, and it’s already written and ready to use, along with every other safety policy you’re likely to need, in BLR’s new Essential Safety Policies. Examine it at no cost and with no obligation to purchase. Find out more.
Possession of pornography is not a crime, but possession of child pornography is. On its website, the national law firm of Vedder, Price, Kaufman & Kammholz, P.C., notes that employers may be held liable for possession of child pornography discovered on company-owned workplace computers, and, in some states, for not reporting to proper law enforcement agencies that employees are engaging in activity related to child pornography.
“Employers who ‘knowingly possess’ images of child pornography on their computers can be held liable under federal law,” according to the Vedder Price newsletter. “The law provides a defense if the employer takes reasonable steps to destroy the visual depiction or reports the matter to the proper law enforcement agency.”
You Can’t Hide Your Head in the Sand
States such as Illinois, Wisconsin, and Indiana also make possession of child pornography a crime, including images stored on a computer. It is a defense that the material was not knowingly possessed, but that defense begins to evaporate if no action is taken once the material is discovered, Vedder Price says.
Arkansas, Michigan, Missouri, Oklahoma, South Carolina, South Dakota, and, just recently, Illinois go a step further, requiring computer technicians to report child pornography detected on workplace computers to law enforcement officials or risk facing individual criminal charges. These states do not require employers to search for such material, but they do require reporting if computer technicians discover the images in the scope of their professional capacity.
No Reasonable Expectation of Privacy
Many employers are concerned that they would be violating their employees’ privacy rights by implementing electronic monitoring programs. However, employees’ expectations of privacy in their computer activities can be effectively removed with a policy putting employees on notice that the employer may inspect or monitor such equipment, and by requiring employees to sign an acknowledgement indicating they read and understood the policy.
So where do you turn to find a policy that can help provide you with this vital protection? Our editors note that a sample policy in the Workplace Contraband section of BLR’s Essential Safety Policies includes a provision that specifically states:
- Company facilities may not be used to store pornography in electronic form. Company facilities may not be used to obtain pornography (e.g., download pornography from the Internet).
And the policy goes on to state, as the lawyers cited above recommend, that: “The company reserves the right to inspect all facilities, computers, equipment, communications to or from its facilities, and systems, as well as personal belongings on its property, to monitor compliance with this policy.”
And that’s the beauty of Essential Safety Policies—you don’t have to craft policies from scratch when there already is one, right on point, that has been written for you. The contraband policy is just one of dozens of safety-related policies included. Taken together, they provide the makings of a ready-to-modify or use-as-is safety handbook for all your workers. The legally compiled and reviewed policies are grouped into three major areas:- Safety, including policies on PPE use, drugs and alcohol as detailed above, hazard communication, work rules, weather, fire and other emergencies, fitness for duty, and disciplinary procedures
- Health, including communicable diseases, required physicals, ergonomics, and workers’ compensation
- Security, including policies on visitors, portable electronic devices, contraband, workplace and domestic violence, among others
Get the safety policies you need without the work. They’re in BLR’s Essential Safety Policies program. Try it at no cost and no risk. Find out how.
The policies are backed by a tutorial on policy writing and essential materials such as handbook receipts. There are some 279 pages of material in all in the book version. A CD version is also available.
If your organization could benefit from supplementing (or perhaps having for the first time) a complete set of safety policies, we highly recommend taking a 30-day, no-cost, no-obligation look at this program. Let us know and we’ll be pleased to send it to you.