One employment law topic that never seems to go away is pornography in the workplace.
When the issue invariably arises, I remember my first attorney job out of law school. I began working at a medium-sized law firm. One partner I frequently worked with was a brilliant, chain-smoking, gruff, old white-collar defense and First Amendment attorney. A lot of his clients were in the “adult entertainment business.” The work was interesting to say the least.
One day, I swung by his office to talk about a case and he had some porn on his computer (honestly – I was there just to talk about a case). I jokingly told him he was going to be in trouble if the firm’s IT director and the no nonsense firm president found out he was using company resources to indulge in such vices.
His response still makes me laugh: “Expletive them. This is expletive ‘legal research’ for me.” As a First Amendment attorney with a substantial client base in the adult entertainment industry, he made a convincing point.
Most, if any, employees cannot make the same argument when it comes to accessing porn in the workplace. Yet often times employers fail to properly investigate instances of employees using company time or resources to access pornography.
For example, as originally reported by Deadspin, a San Francisco Radio station apparently posted the above notice in response to discovering workplace pornography (you can almost hear the exasperation in the notice by the KNBR’s IT/management). KNBR’s notice provides a number of points on what not to do when it comes to investigating workplace pornography:
- To begin with, the first line of defense against viewing or accessing pornography using employer provided resources, e.g., company Internet, emails, computers, etc.) should not be in a (misspelled) posting. Instead, employers should first cover the issue in an employment policy manual and potentially in a separate technology policy agreement, with express prohibitions against it and explaining that violations may result in discipline, up to and including discipline.
- Second, once pornography is discovered on or accessed through company provided computers or resources, then upper management and the company’s attorney needs to become involved at the outset. Together, management and legal counsel can take the appropriate steps to reasonably investigate the issue.
- Third, taking the KNBR notice at face-value and building on the preceding point, KNBR did the right thing in taking the offending computer out of service. But it is a critical mistake for the company’s IT professionals to tamper with that computer, e.g., “rebuild,” reboot, or put it back into circulation. Such actions may result in destroying or altering evidence, which can undermine a company’s evidence supporting its disciplinary action and even expose the company to legal liability (often referred to as “spoliation”).
- Fourth, a real concern that employers need to carefully evaluate is whether any pornography discovered in the workplace involves children. If so, the need to inform law enforcement should take immediate priority. See What Should An Employer Do if Child Pornography is Discovered in the Workplace?
Workplace misconduct, including viewing or accessing pornography using employer-provided resources needs to be taken seriously and carefully investigated. For more information about best practices for preventing such misconduct or properly investigating employee misconduct, contact employment attorney Jason Shinn. Mr. Shinn routinely collaborates with businesses and their HR professionals to address federal and Michigan employment law issues, as well as planning and conducting workplace investigations of potential misconduct.