Article by Capehart Scatchard

by Bruce L. Harrison, Esq. and Armando V. Riccio, Esq.

The potential risks employers face from unfettered employee use of, or access to, the Internet and other electronic communications was recently expanded by the New Jersey Supreme Court. In Blakey v. Continental Airlines, Inc., et al., the State Supreme Court unanimously determined that an employer may be liable for employee messages posted on an offsite electronic bulletin board which the employer did not maintain, monitor or require employees to use. The broad implications of the decision extend well beyond the latter. Employer liability under the New Jersey Law Against Discrimination for an employee’s offsite conduct will now be judged on a workplace continuity standard: settings which are closely related or linked to the workplace environment and deemed beneficial to the employer will be considered part of the workplace.

Employers should implement a balanced response to this latest legal development and avoid measures which may implicate grave employee privacy concerns such as monitoring employee e-mail. The facts, legal implications and possible preventive measures are each discussed below.

Summary of Facts

Continental Airlines, Inc., (“Continental”) required its pilots and crew members to obtain their flight schedules and assignments from its Home Access program. The program was accessible through three methods, one of which was an Internet-based system accessed via computer modem through CompuServe. Employees were not required to access the system in this manner. Those who chose to do so were required to pay CompuServe a monthly fee for Internet access. As an added feature, CompuServe included an on-line computer bulletin board, the Crew Members Forum (“Forum”). The Forum served as a means of communication among pilots and crew members. Although Continental management was not permitted to post or reply to messages, it did have access to the Forum. . Tammy Blakey (“Blakey”) was employed by Continental as a commercial airline pilot. In 1993, Blakey filed a lawsuit in federal court against her employer alleging sex discrimination, hostile work environment and retaliation based on pornographic photographs and vulgar gender-based comments directed at her in the workplace. During that lawsuit, various male Continental pilots published a series of messages on the Forum which claimed, among other things, that: Blakey was using her gender as an opportunity to make money through the law suit; she filed suit to divert attention from her poor record as a pilot and to retaliate against the company because she did not receive preferential treatment; Blakey’s work difficulties were due to her inability to interact with others effectively, and; her incompetence severely damaged company aircraft. Ultimately, this led Blakey to file a state court lawsuit in New Jersey against Continental and several co-workers for defamation, sexual harassment-hostile work environment and emotional distress.

Legal Issues and Summary of the Court’s Findings

Can an employer be held accountable when none of the activity in question occurred on property owned or operated by the employer?

Forums that benefit an employer and possess an intimate nexus to the workplace environment may be considered part of the workplace. Even if the employer does not owe a duty to monitor such a forum, an employer’s actual or constructive knowledge of unlawful co-worker harassment or discrimination outside of the workplace may require it to take prompt effective remedial action to prevent continuation of such conduct. The key factor is determining whether the forum constitutes an integral part of the workplace. For example, an electronic bulletin board may be so closely related to the workplace environment and beneficial to the employer that the forum will be regarded as part of the workplace regardless of its location. If the employer has notice of a pattern of retaliatory harassment directed at a co-employee on such a forum, the employer has a duty to remedy that harassment.

To illustrate, an employer can not disregard severe and pervasive harassment which occurs at a nearby place frequented by its senior management and staff where one of its employees is regularly subjected to sexually offensive insults as an extension of harassment in the workplace. Moreover, the fact that the conduct occurs away from the workplace is insignificant. For example, an employer can be liable for a hostile environment for conduct which occurred in a tavern outside of the workplace if the employer knew or had reason to know of it and failed to take reasonable measures to halt it.

Can residents of other States be subjected to the personal jurisdiction of New Jersey courts by virtue of their posting allegedly defamatory information on an electronic bulletin board?

Nonresident co-workers who publish statements that are defamatory, harassing or intended or foreseeably likely to interfere with, or make such statements in retaliation for, a co-worker’s pursuit of a discrimination claim in New Jersey, can subject themselves to suit in New Jersey.

Preventive Measures

Notably, Blakey involved co-worker harassment and hence, the Court applied a negligence standard to the conduct and communications at issue. A similar scenario involving a superior and subordinate would significantly increase an employer’s potential liability exposure. Keeping this in mind, employers should consider implementing the following preventive measures:

Review current personnel policies.

Establish, publish and distribute an effective anti-harassment and anti-discrimination policy and complaint procedure. Employers should require all employees to sign a form acknowledging receipt and review of same. Make certain complaint procedures are drafted broadly and are not limited in application or description to only sexual harassment. Such policies and procedures should address all forms of unlawful harassment and discrimination. Employers should also post the policy and procedure on company bulletin boards, including electronic bulletin boards.

Ensure personnel policies broadly define electronic information systems and include a policy regarding employee use of systems that are connected with the workplace. At a minimum, the policy should make clear that use of such systems is strictly limited to lawful, business-related purposes and violation of the policy or failure to report violations can result in disciplinary action up to and including termination. Employees should also be notified that their use of such systems constitutes an implied consent to employer monitoring and an implied waiver of any claim of privacy.

Revise present policies to address conduct or communications which occur at locations or through mediums which are closely connected to the workplace such as company-sponsored events, seminars, e-mail or electronic bulletin boards.

Communicate new or revised policies to employees and supervisors. Remind all employees of the methods and means available to address complaints regarding unlawful workplace harassment or discrimination. Instruct all employees that the company’s anti-discrimination and anti-harassment policies and complaint procedures apply to such conduct or communications. Also remind supervisors and employees of their responsibility to promptly report all violations of the policy.

Approach Employee Monitoring Cautiously. Monitoring employee communications can raise serious privacy issues which expose employers to liability. Employers who decide to engage in such monitoring should take a conservative approach. For example, an employer may limit monitoring to instances involving a reasonable suspicion that an employee is using the communication medium for an improper purpose or in violation of company policy. Employers should keep in mind that monitoring in a unionized environment raises additional concerns and obligations. Any monitoring policy should be reviewed by competent legal counsel, narrowly drafted, strictly adhered to by those enforcing it, and distributed to all employees prior to implementation.