Dr. Frank Kardasz (Ed.D)

Kardasz: I disagree with Charles A. Sullivan who is quoted below as saying that he thinks the court decision described is "awful".  I think the decision is excellent! Other research I have read indicates that employers are reluctant to report unlawful image incidents involving their employees. I am pleased that the New Jersey Supreme Court recognized the duty that employers have to protect the children who are harmed by unlawful images. 

How will this decision someday effect the law enforcement agencies who become aware of possessors of images of child pornography but fail to devote sufficient personnel and resources to the investigations of those possessors?

The research of Doctors Hernandez and Bourke at the Butner North Carolina Federal Correctional facility indicates that a significant percentage of persons incarcerated for possession of child pornography were also "hands-on" contact offenders. Most of the child victims involved in these incidents are unable to infom law enforcement of the offenses. It is time for law enforcement to step-up and to devote more resources to these crimes. 

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Employer Had Duty To Stop Workders Porn Surfing  New Jersey Appellate Ruling Disturbs Employment Law Experts 

ABA Journal Report , BY G.M. FILISKO, Friday January 6, 2006

When an employer has actual or imputed knowledge that an employee is using a computer at work to "access pornography, possibly child pornography, [the company] has a duty to investigate … and to take prompt and effective action to stop the unauthorized activity," a New Jersey appellate court has ruled. Doe v. XYC Corp., No. A-2909-04T2 (Dec. 27).

The ruling by the Superior Court of New Jersey, Appellate Division, involved a man who later admitted he uploaded nude photographs of his stepdaughter to a child pornography Web site. But as distasteful as the crime is, several employment law experts find the decision unpalatable as well.

"I think the decision is awful," says Charles A. Sullivan, an employment law professor at Seton Hall University in Newark, N.J. "It imposes a big duty on employers, and it’s a huge infringement on employees’ privacy rights."

"It’s a horrible opinion," concurs Laurie Leader, a professor of clinical practice at Chicago-Kent College of Law who specializes in labor and employment law. "I think this court is out on a limb. It’s almost imposing some kind of strict liability on employers."

But the plaintiff’s attorney, Kevin Kovacs of Bedminster, N.J., defends the court’s opinion as "an important decision and a good decision for potential victims of child pornography."

"The defendant argued that my position turns employers into police departments. But it doesn’t," Kovacs says. "We never argued that there should be full-out monitoring of employees’ Internet activities. We argued that in limited circumstances, where the company has information, it has to investigate, and when there’s child pornography, it has to report it because there’s potential harm employees can do to third parties."

The corporation’s attorney did not return a call for comment. It has until Jan. 17 to petition the New Jersey Supreme Court for review.

The case was brought by a woman individually and on behalf of her 10-year-old daughter, who had been secretly videotaped and photographed in nude and semi-nude positions by the woman’s then-husband. He later transmitted the pictures over the Internet at his workplace. The couple has since divorced and, according to Kovacs, the ex-husband is serving a prison sentence for his child pornography activity.

In Doe, the woman alleged her former husband’s employer, based in Somerset County, failed to take appropriate action when it learned he was accessing Internet pornography sites at work and that, had the company taken the right action, the sexual abuse her daughter suffered might have been prevented.

According to the appellate ruling, in two instances, the company’s computer network administrator and the employee’s supervisor viewed the employee’s Internet site history and learned the employee had been viewing what they believed were pornographic sites, including a site called Teenflirts.org. But they never accessed the Web sites themselves.

The network administrator, however, was instructed to stop tracking the employee’s Internet usage because of a company policy prohibiting monitoring or reporting of employees’ Internet activities.

Before that warning, the administrator and another computer employee told the employee to stop viewing Internet pornography. The employee’s supervisor had a similar talk with the employee on a different occasion. The employee told his supervisor he would quit visiting porn sites at work, but the supervisor later saw that the employee had resumed his activities.

The trial court granted summary judgment for the corporation, saying that the employee’s "conduct at home," which it stated was the molestation of the child, was not under the corporation’s control. According to the trial court, the corporation acted as a reasonably prudent corporation would have acted because, "upon receipt of complaints from [its] employees, defendant instructed the [employee] to stop [his] conduct." It also said there was no evidence the company was aware the employee was viewing child pornography. Because the company was under no duty to monitor the private communications of its employees, "there has been no breach of a duty and no negligence on the part of the defendant corporation," the trial court said.

The appellate court reversed, holding that the corporation had the ability and right to monitor the employee’s Internet activities and that it knew or should have known the employee was using the office computer to access child pornography. It also held that, with actual or imputed knowledge of the employee’s viewing of child pornography on a company computer, the defendant had a duty to either report the employee’s actions to law enforcement or to fire him.

The appellate court, however, remanded the final issue, proximate cause, to the trial court. "We agree in large part with plaintiff’s arguments" the ruling states, "but not with the final leap to defendant’s liability." According to the appellate court, to show proximate cause, the plaintiff must show that harm to the child would have been averted had defendant acted to stop the employee’s activities when it had sufficient information.

Sullivan says proximate cause will be difficult to prove. "This is one of those hard cases making bad law," he says. "Probably, proximate cause isn’t going to be established, which means we’ll have this precedent on the books that imposes this duty on employers even though the plaintiff in this case won’t ever get a dime from the employer."

But Michael Selmi, professor of employment and civil rights law at George Washington University School of Law in Washington, D.C., says the case is narrower than it seems on first read. "The initial buzz of the case is great," he says, "but the duty to report and investigate arises only because the case involved child pornography, which is illegal. Most Internet usage wouldn’t involve illegal activity, and if it were only pornographic sites, the employer wouldn’t have a duty to report anybody."

The holding is also limited, Selmi says, because "the employer had so much knowledge, not necessarily regarding abuse of the stepdaughter, but in terms of complaints from other employees. That level of knowledge, combined with illegal activity, created a duty that wouldn’t typically exist. By no means would this be an easy case for plaintiffs to rely on" in bringing other actions, he says.

But Sullivan says the decision forces employers to monitor employees’ computer use.

"Right now, employers have a right to monitor employees’ computer use," he says. "They don’t have a duty. It’s a huge step [from saying] an employer can if it wants to supervise employees’ e-mail and Internet use, to saying an employer’s liable if it doesn’t supervise an employee’s use of the computer."

Sullivan adds, "There has historically never been a requirement that people report other people for violations of the law, and this court comes pretty close to saying you have to do that."