Privacy Issues in the Workplace

such as prisons. However, we advise that all employers seek legal counsel and technical advice before implementing this type of technology.

K. E MPLOYER ’ S A FFIRMATIVE D UTY TO R EPORT E MPLOYEES ’ U NLAWFUL A CTIVITY ON THE I NTERNET In a case of first impression, an appellate court in New Jersey has found that, under certain circumstances, an employer may be subject to a common law negligence claim for failing to report an employee’s use of workplace computers to access child pornography. In Doe v. XYC Corp, 508 a mother brought an action for negligence on behalf of her minor daughter against her husband’s employer for failing to report the husband’s use of a workplace computer to access pornography and send nude photos of the daughter to a child porn site. The trial court granted the employer summary judgment on the grounds that it had no duty. The appellate court reversed finding that the employer’s computer use policy, which included monitoring employee’s computer use and resulted in the detection of employee’s access to child porn sites, created a duty to report the “employee’s activities to the proper authorities to take effective internal action to stop these activities whether by termination or some less drastic remedy.” This case does not reflect California law, and it is unclear if it reflects current trends in the law. The decision is instructive, however, in that it raises questions concerning whether an employer has an obligation to report an employee engaging in illegal conduct on the Internet to the authorities once that misconduct is discovered via monitoring.

R EGULATION OF P ERSONAL AND O FF -D UTY C ONDUCT

S ECTION 7

Employers are only permitted to control off-duty conduct or relationships in limited circumstances. The touchstone in all of these is job nexus, or connection to the position in question. This section will explore the laws that define and limit the circumstances in which an employer can control, interfere with, or base employment decisions upon, off-duty conduct or relationships.

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