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Employer Found Immune From Liability For Employee's Personal Use of Company Computer

February 13, 2007

By: Pamela J. Marantz

In Delfino v. Agilent Technologies, Inc., (2006) 145 Cal.App.4th 790, defendant Agilent's employee sent threatening emails to others, using his computer at work. One recipient sued both the employee and Agilent, which had only learned of its employee's conduct when notified by the FBI as part of its investigation. Agilent's own subsequent investigation resulted in the employee's confession and termination.

On December 14, 2006, the California Court of Appeal, Sixth District, issued its opinion agreeing with Agilent's defense that under the circumstances of this matter, as an employer it could not be held liable for civil liability to recipients of the emails, finding that the Communications Decency Act of 1996 provided Agilent with immunity from liability because (1) Agilent was merely the computer service provider and "enabled computer access by multiple users," and (2) Agilent did not contribute to the content of the emails or know they were being written.

This is an excellent ruling for employers and should provide CEO's and risk managers with some comfort in knowing that there are limits on liability that can be imposed on an employer where an employee misuses electronic forms of communication and/or internet access in the workplace.

However, that said, there are circumstances and situations to which the Communications Decency Act may not be found to provide protection for employers, underscoring the need for businesses to maintain suitable policies and procedure manuals that detail acceptable and unacceptable Internet and email use, including the employer's right to monitor such use and the actions the employer will take in responding to employee misconduct in this regard.