To monitor or not to monitor that is the new age question. In these uncharted waters, both can cause claims against in employer.
One of the original cases addressing this was Blakey v. Continental Airlines, 164 N.J. 38 (2000), where a pilot filed a hostile-work-environment claim against her employer based upon comments posted by her co-workers on a pilots’ electronic bulletin board operated by a third-party service provider. As held in Blakey, an employer has an affirmative duty to take effective measures to stop co-employee harassment when it knows or has reason to know that such internet use is part of a pattern of harassment taking place in settings related to the workplace.
Then there is the prospect of liability for criminal liability: In Doe v. XYZ Corp., 382 N.J. Super. 122 (App. Div. 2005), an employer was found liable for negligently failing to properly investigate an employee’s prohibited activity on a company’s computer. Following a police investigation as part of an employee’s arrest on child pornography charges found that the employee had viewed child pornography blogs and websites, and stored child pornography on his work computer. The court held that: “For these reasons we are unable to agree with the motion judge’s conclusion that defendant had no knowledge that Employee had ‘engaged in any conduct that would cause a person to have reasonable cause to believe that [Jill] had been subjected to child abuse or acts of child abuse.’ On the contrary, as we have explained, the record and reasonable inferences therefrom support the conclusion that defendant had knowledge that Employee was engaging in activities that posed the threat of harm to others, although not necessarily Jill. We see no unfairness in the imposition of a duty on defendant in these circumstances.” Doe v. XYZ Corp. is a great opinion that every employer and employee should read.
But, once an employer starts monitoring, it has to be done the exact same for everyone. In Simonetti v. Delta Airlines, Inc., No. 5-cv-2321 (N.D. Ga. 2005), a Delta Airlines flight attendant filed a lawsuit for gender discrimination after being fired for posting provocative photographs of herself in a Delta Airlines uniform on her blog site while male employees who posted online pictures while wearing Delta uniforms were not likewise fired.
If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm is dedicated to protecting employees’ rights and solving employment disputes.
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