Policing Employees' Online Access at Work

Certainly, an employee's abuse of a company's computer systems can raise a number of legal concerns ' not only for the individual but also for the corporation. For example, cases abound where the contents of employee e-mails, computer downloads and other electronic communications are used as evidence in claims of discrimination or harassment in the workplace. Central to such claims is proof that the employer failed to take appropriate steps to prevent ' and promptly correct ' the unwelcome conduct.

Aside from their concern over potential discrimination or harassment claims based upon the content of inappropriate e-mails and other electronic communications, companies have traditionally worried about a variety of tort claims that may be brought by the recipients of those materials. Now, in light of a recent, highly publicized New Jersey appeals court decision (Doe v. XYC Corp., New Jersey Superior Court Appellate Division, 2005), employers must also take heed that the scope of their potential liability has been expanded to third parties harmed by an employee when an employer knows, or has reason to know, that the employee is engaging in conduct that is potentially harmful and yet fails to take action in response to that information.