Yes. Based on facts similar to this, a New Jersey appellate court held that an employer who is on notice that one of its employees is using a workplace computer to access pornography, possibly child pornography, has a duty to investigate the employee’s activities and to take prompt and effective action to stop the unauthorized activity, lest it result in harm to innocent third parties. In reaching its decision, the court noted the following factors:

The employer’s ability to monitor the employee’s Internet access on his work computer. The employer’s network administrator conducted limited investigations of the employee’s computer use by using the network’s daily log system to isolate and identify pornographic websites visited by the employee. However, the administrator did not open any specific sites or report his findings to his supervisor.

The employee’s immediate supervisor opened the employee’s computer while he was at lunch and clicked on “websites visited” to verify the employee’s inappropriate activity. Like the administrator, the supervisor did not further explore any of the identified websites or take any further action to determine the nature of the employee’s computer activities. The employer also admitted that it could have implemented software that would have allowed it to monitor the employee’s Internet activity, but it failed to do so.

The employer’s right to monitor the employee’s activities on his office computer. Although the employer argued that the employee’s privacy interest trumped its right to monitor the employee’s computer use at work, the employer’s e-mail policy specifically stated that “all messages composed, sent or received on the e-mail system are and remain the property of the employer. They are not the private property of any employee.”

The policy also limited Internet access to business-related sites only. Further, anyone who discovered a violation of the policy was obligated to notify personnel. Moreover, the employee’s office did not have a door and his computer screen was visible from the hallway.

Thus, the court found that the employee did not have a legitimate expectation of privacy that prevented the employer from accessing the employee’s computer to determine if he was using it to view adult or child pornography.

Employer’s knowledge of the employee’s activities. The employer, through its supervisory and management personnel, was on notice that the employee was viewing pornography on his computer and that this included child pornography. Further, because this use was not “of a business nature” it violated the employer’s policy. That same policy required that violations be reported to personnel.

This action would have triggered a more thorough investigation that, the court pointed out, would have uncovered the full scope of the employee’s activities and presumably would have led to action to stop those activities. Thus, the court reasoned that the employer was on notice of the employee’s activities and was under a duty to investigate further.

Employer’s duty to prevent employee from continuing his activities. Because the employer had knowledge that the employee was viewing child pornography—an activity that posed a threat of harm to others—it was under a duty to report the employee’s activities to the authorities and to take appropriate internal action, the court concluded.