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Forensic Examination Involving Sexting In The workplace?

Image of mobile device that is subject to forensic examination involving sexting

Forensic examination involving sexting in the workplace.

Does your company policy include language that would cover a forensic examination involving sexting in the workplace? As with most of our articles they are sparked by our investigations. We are in the process of investigating an employee(s) who engaged in visiting porn sites from their employer provided devices using their employers Internet services. We discovered this was being conducted from the employee’s mobile device. During the forensic examination of the mobile device we discovered that the employee had been engaging in an affair. The affair was being conducted on company property as well as documented on company hardware. Did I mention one of the parties is married?

Often we see in infidelity cases where a spouse will use their employer’s hardware to facilitate an affair.  Either they will keep the phone close to their person or demand their partner keep their hands off it. It often keeps our hands off as well, since legally the spouse can’t give us permission to examine a computer or cell phone they don’t own or can legally give us permission to examine.  But what about when the role is reversed and the employer is forced to deal with the affair?

Can you be sued for conducting a forensic examination involving sexting in the workplace?  The Supreme Court of Ontario California recently overturned a decision on a similar matter, wherein a lower court thought the employer had invaded the employees right to privacy. Given the sensitivity of the matter we were curious as to where the lines were with regard to the mis-use of company property, violations of company policy, and privacy laws. Forensically this case was very easy to document to the extent one of the parties saved every email, photo, and text. But could our client be sued for uncovering it?  In our case the employee’s engaged in sexting in the office. They are both salary employees. Could you imagine an attorney arguing you can’t sue for sexting since your nude selfie is covered under the work product doctrine.

In short the article and the court opinion basically say you must inform the employee that you retain your right to examine your hardware and if their personal information is on there its no longer private. If an employee engages in such gross misconduct on company property while using company computers and mobile devices, have they waived their right to privacy. Fortunately it appears (from what we gathered) the law tends to lean towards company policy. Yes, you have to tell them they can’t have sex in your office and they can’t sue you if you find their nude “Selfie” on your device. Fortunately our clients corporate policy included the proper language with regard to informing their employees they do not have the right to privacy with respect to company owned hardware.  If the employer learns of an affair or sexting does the employer assume some type of liability if they allow it to continue? Can they be sued by the employee’s spouse if they contract a STD to the extent the injury occurred on company property and the injury was caused by another employee?

Here is some insight on the subject which was provided by Berger Legal LLC:

“Sexting in the Workplace

Thu, Feb 10th, 2011

Brett Favre is making headlines for a lot more than his retirement lately. Just a few weeks ago, two massage therapists who were employed by the New York Jets at the same time as Favre, sued him alleging sexual harassment. They rely on several suggestive text messages they allegedly received from the quarterback to establish their claims. In October, Favre was accused of sending sexually explicit text messages and pictures, commonly called “sexting,” to a female field reporter who worked for the Jets at the same time he did. The NFL was not able to establish whether or not Favre sent the messages, but it is possible that he may face further charges. While Favre may be the subject of some of the more high-profile allegations of sexting, as more people use text messaging as a means of communication, sexting, and allegations of sexual harassment involving sexting, are becoming increasingly prevalent in the workplace.

Sexting Can Lead to Sexual Harassment Claims

Sexually explicit text messages can be used to harass and are often used as evidence in sexual harassment claims.  The majority of states recognize that harassment can occur via electronic means and have laws prohibiting it.  In addition, employees are increasingly using test messages to prove claims of quid pro quo and hostile work environment sexual harassment. For example, in Kuntzman v. Wal-Mart, 673 F. Supp. 2d 690 (2009), the plaintiff alleged her former supervisor sexually harassed her by sending her unwanted sexually explicit text messages asking her to engage in sex acts. She was able to avoid summary judgment, in part, based on a record of sexually themed text messages sent to her from her supervisor.

Sexting Using Corporate Equipment

Sexting may be occurring on company-issued electronic equipment. Many employers want workers to use electronic devices like cells phones and smart phones to conduct business and many provide this equipment directly to the worker. However, many workers use company issued electronic devices for personal use as well. Individuals who use company-issued electronic equipment to send sexually suggestive text messages could be in violation of corporate computer use or other IT policies. This issue made its way to the Supreme Court in City of Ontario v. Quon, 130 S. Ct. 2619 (2010), in which a former government employee alleged a violation of the Fourth Amendment when his employer searched his government-issued pager and found a record of sexually themed text messages. In Quon, the Court gives guidance to public and private employers addressing 1) the use of corporate-issued equipment, the Internet and social networking sites, 2) corporate monitoring of such equipment and 3) a workers expectation of privacy when using that equipment can help limit liability should an employer learn of potential misuse.

Text Messages Are Discoverable

Finally, text messages are easy to retrieve and are discoverable. Many people think of text messages as being fairly private, and, because they are so easy to send, many people do not put a lot of thought into their content. But, when a text message is sent, a record of the transmission is stored. It is easy to find and retrieve these records and if they are relevant to pending litigation, they could be used against a company in litigation whether or not they are sent from a company issued device or a private one.

What can an employer to do address sexting in the workplace?

  •  Review corporate sexual harassment policy to ensure it clearly states that sending sexually suggestive/explicit texts and pictures is forbidden and communicate this policy frequently (through training, email updates, yearly policy acknowledgments, etc.).
  •  Ensure corporate computer use policies address the use of texting and other social media. State precisely what is permissible when using corporate-issued electronic devices and what is not. Include a statement making it clear that there is no expectation of privacy in the use of company issued electronic devises and that such devises may be monitored in compliance with applicable law.
  •  Take allegations of sexual harassment or sexting seriously. Conduct a prompt and thorough investigation of the allegations and take appropriate action upon the conclusion of the investigation.
  •  Review the company’s record retention and data storage policies to determine if they address the collection, storage and retention of text messages. If they do not, consider including text messages in the policy.”

This quoted article was obtained from