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Workplace porn can leave employers exposed

By: DOLAN MEDIA NEWSWIRES//May 14, 2012//

Workplace porn can leave employers exposed

By: DOLAN MEDIA NEWSWIRES//May 14, 2012//

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By Carol Lundberg
Dolan Media Newswires

Earlier this month, news that a well-known, highly respected director of Michigan’s State Appellate Defender Office had resigned after being confronted with evidence of inappropriate workplace Internet surfing stunned the legal community.

It also served as a reminder that it could happen in any workplace, and even the most law-savvy employers may not know exactly what to do when it does.

As difficult as it might be, most lawyers experienced in advising employers who find such evidence on company computers advise their clients: “Don’t panic.”

The problem was discovered during a fairly routine activity — the installation of firewalls at the SADO offices. That’s when staff learned that Director James Neuhard’s computer had been used to search for and surf pornographic websites.

Within 24 hours, back in January 2011, the State Appellate Defender Commission, SADO’s governing body, called a meeting and confronted Neuhard with what they knew. Neuhard resigned.

“We immediately secured Mr. Neuhard’s resignation within 24 hours of the discovery,” said John Nussbaumer, commission chairman. “We directed staff to secure all the evidence, the computers and backup files.”

Securing evidence is essential even in those cases where the appropriate remediation is not firing the employee, said Terry Bonnette, of Nemeth Burwell PC in Detroit.

“There are two issues to consider,” he said. “What is the company’s liability to itself, and what is the duty to third parties?”

The knee-jerk reaction is often to fire the employee, Bonnette said.

“But sometimes the appropriate remedial action is discipline or training,” he explained. “… Looking at porn is not illegal. But doing it at work is inappropriate unless your job is to do that.”

He said that finding pornography on the computers at the office is far less likely to be a criminal activity than it is to be a sexual harassment problem.

“Our work environments should be free of unwanted communication,” Bonnette said. “I can see three computer screens from my office. My co-workers have a right not to be exposed to pornography in the office. There is a liability for employers who choose to look the other way.”

Preserving the evidence

Brian Lennon, a former federal prosecutor who now works at Warner Norcross & Judd LLP in Grand Rapids, advises clients who call in a panic over porn on the workplace computers, “First thing you have to do is document what you have done so far, where you found it, and what you found.”

If there is obvious evidence of illegal content, specifically child pornography, the first step is to call law enforcement. But most of the time, the employer won’t know everything that’s in the deep recesses of the computer’s hard drive, so documentation of the company’s actions is essential to protect the company, he added.

“But what you should not do at this point is confront the subject,” Lennon cautioned. “You have to figure out first who had access to the computer terminal, and who might be responsible. You don’t want to confront the person yet because they could destroy some of the evidence.”

The next step, he said: “If possible, surreptitiously switch out the hard drive.”

Doing so will preserve evidence that can protect the employer. But it also enables the employer to get the computer out of the hands of its own IT department and into the hands of a forensic computer expert.

“Don’t do the investigation yourself,” Lennon said. “Your IT people blundering through it is so fraught with problems.”

After the exam, the employer will have a better idea of what was on the computer, and whether it’s strictly a human resources issue, or if law enforcement action is required.

“If it’s child porn, it’s contraband, just like heroin or counterfeit money. There is no lawful reason for having it,” Lennon said. “If it’s child porn or borderline, you have to report it to law enforcement.”

Nussbaumer said that the commission agreed last July to turn over all evidence to federal investigators, and the staff at SADO cooperated fully when federal authorities came to the office to make backup files of all the computers and took statements from staffers.

After the U.S. Attorney determined that the evidence didn’t meet the threshold to bring charges, Nussbaumer said, “They asked us for our recommendation on what to do. We sent a unanimous letter asking [the U.S. Attorney Office] to turn it over to state authorities. … This alleged criminality only came to light because of what we did.”

Wasting time, causing risk

Jay Poupard, senior computer security consultant at Mid-Michigan computer Forensic Group in Fenton, said that all employers should be alert to inappropriate computer usage in the workplace, regardless of the content.

“Surfing adult sites, from an employer-employee relationship may seem more egregious,” he said. “But it’s all an abuse of time. I don’t think we should lose sight [that] if is not being productive, does it matter if he’s surfing adult content or selling on eBay all day?”

Though surfing adult websites is likely to violate more than one company policy — acceptable computer use policies and sexual harassment policies — wasting time also is harmful to an employer.

It also can put the company computer networks at risk, Poupard said.

“A lot of adult sites have malicious code, or malware,” he said. “It’s the company’s due diligence to ensure that if an employee’s habits are putting the company at risk, they need to encourage that employee to have better habits. It really starts with a good understanding of what’s acceptable.”

Thomas Brady, of Clark Hill PLC in Detroit, said that an acceptable-use policy should be specific enough to prohibit visiting pornographic websites, but not so broad that they could unintentionally prohibit workers from engaging in protected activity.

“The National Labor Relations Board doesn’t say it’s OK to look at porn on the company computer, but you can’t restrict usage policies so much that they might impinge on Section VII rights,” he said. “The company should have a policy that says you can’t use the company systems to get porn or to harass another person.”

Acceptable-use policies should make it clear that any activities or files on a company computer are not private, and the employer reserves the right to search any information on company equipment, Brady added.

Some go further and say you can’t use the company equipment for personal email or other personal uses.

“But then you have to enforce it universally,” Brady said. “And if you say you’re going to monitor usage, you need to monitor usage.”

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