The recent sentencing of a West Texas man on a child pornography conviction serves as an important reminder to employers of the need to consider the potential criminal exposures and responsibilities of their organization and its management under the Federal Sentencing Guidelines when an investigation of sexual harassment policy violations uncovers evidence that an employee may have engaged in the transmission or receipt of pornography on company computers or systems.
On May 8, 2009, U.S. District Judge Sam R. Cummings sentenced Rory Dale Worthan, of Big Spring, Texas, to 78 months in prison followed by a 30-year term of supervised release illegal possession of child pornography. Worthan pled guilty in January to one count of possession of child pornography. He admitted that on February 8, 2007, he had an image of child pornography on his computer’s hard drive that he had downloaded from the Internet. His conviction was part of a series of convictions resulting from a West Texas child pornography sting operation.
Although Worthan’s conviction related to his use of his personal computer system, statistics show that workplace access of child and other pornography during company hours is common. In fact, some studies report that 70 percent of all Web traffic to Internet pornography sites occurs between the traditional work hours of 9 a.m. and 5 p.m. See “Workplace Web Use: Give ‘em an inch …,” Douglas Schweitzer, SearchSecurity.com (Sept. 27, 2004).
While most employers already are aware of the substantial employment discrimination and sexual harassment liability exposures that employee access, possession and transmission of pornography and other sexually explicit or suggestive content can create under Title VII and other federal and state employment discrimination laws, many are unaware that the use by employees of their computers to access, store, transmit or engage in other activities involving child pornography or other sexually explicit materials also may have criminal implications for their organization under certain circumstances.
As part of broader prohibitions against activities involving the sexual exploitation of minors, for instance under the U.S. Criminal Code, Title XVIII makes the creation, receipt, transmission possession, retention, transmission and certain other activities involving child pornography or certain other visual depictions involving the use or depiction of a minor engaging in sexually explicit conduct under certain circumstances a felony under federal law.
Under the organizational provisions of the Federal Sentencing Guidelines, a business that employs an employee or agent who engages in these activities during working hours or using company systems or equipment may face vicarious liability for the wrongful criminal actions by its employee in violation of these or other federal laws where the criminal action engaged in by the employee is a Felony or Class A misdemeanor. Under such circumstances, the liability exposure of the employer generally depends upon its ability to demonstrate that it had suitable policies and procedures in place to prohibit and prevent the activity, whether it timely investigated and took appropriate measures to report the violation to federal law enforcement officials and cooperate with them in their investigation and prosecution of the offending employee and other factors.
In addition to these criminal liability risks, employers also may face exposure to civil judgments in lawsuits brought by families of children victimized by employees using employer computers or operating systems. In Doe v. XYC Corp., 887 A.2d 1156 (N.J. Super. Ct. App. Div. 2005), for example, a New Jersey appellate court ruled that an employer could be held liable in a negligence action to a victim of child pornography based on the actions of one of its employees. In Doe, the wife of an employee who used his workstation computer at work to view and circulate nude photographs of his 10-year old stepdaughter sued the employer for negligence claim. The mother claimed the employer acted negligently by failing to detect and stop her husband from using his work computer to interact with child pornography Web sites, thereby allowing him to “continue clandestinely photographing and molesting” his 10-year-old stepdaughter.
For this reason, employers who uncover evidence that an employee or agent during working hours or using company equipment or systems may have created, received, transmitted, or stored child pornography or other sexually explicit materials must take prompt action to mitigate both their civil and criminal liability exposure. In addition to taking prompt action to prevent, investigate and discipline employees and agents that violate employer policies against using or possessing sexually inappropriate materials, businesses also should promptly seek the assistance of competent legal counsel to evaluate whether the prohibited conduct violated federal child pornography or other criminal laws. Where an investigation uncovers evidence of a potential violation of such laws, employers should seek assistance of counsel experienced with both employment and white collar criminal laws about the advisability of notifying federal law enforcement officials about that evidence and the best procedures to use to make those disclosures. In addition, employers should implement reasonable procedures to prevent and minor activities that may suggest employees or others granted access to company systems may be engaging in prohibited actions and take well documented action to investigate and redress this suspected misconduct.
As the monitoring and investigation of these concerns typically will require that an employer search or monitor employee e-mail or other files, employers also should ensure that they have in place appropriate privacy disclaimer, system use and background check and investigations that empower the employer to minimize potential exposures to privacy or other employment claims by employees or others whose e-mail or other files or activities are scrutinized in connection with these activities.
Chair of the Curran Tomko LLP Labor and Employment Practice and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Cynthia Marcotte Stamer regularly assists U.S. businesses to investigate and redress sexual harassment and other employment and internal controls matters. If your organization needs assistance with investigating or responding to a suspected sex discrimination or sexual harassment matter involving pornography or other suspected employee misconduct under company policies or applicable federal or state law, please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402 or your favorite Curran Tomko Tarski, LLP attorney. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarski, LLP team, see the www.cttlegal.com.
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