Recent court decision is a wake-up call to employers on employee electronic communications

June 28, 2017

A recent court decision in Massachusetts is a wake-up call to employers on the extent to which courts might implicate an employee’s electronic communications.

While this particular case doesn’t involve employment law, a judge in Massachusetts recently rendered a ground-breaking decision in a criminal case involving what can only be described as text-messaging induced suicide.

Michelle Carter, then 17, met Conrad Roy while on a family vacation. According to the case, Roy suffered from thoughts of suicide.

Roy ultimately committed suicide after carefully planning his death by rigging a carbon monoxide feed to the cab of his pickup truck. During his suicide attempt, he and Carter texted about his plans, progress and second thoughts, and eventually Carter called him and, according to the court, pressed him to commit suicide while she listened to him take his last breath.

In convicting Carter of involuntary manslaughter, who was an hour away at the time of the death, the judge concluded that Carter’s encouragement via text messaging caused Roy’s death.

Carter’s communications consisted of more than a simple message or two. In her communications, Carter texted Roy to “get back in” when he told her that he was having second thoughts about committing suicide and had left the truck. The evidence showed a series of text messages, telling him, for example, “You keep pushing it off and you say you’ll do it but u never do.”

She told him, “You’re finally going to be happy in heaven.”

In a case of first impression, the court determined her written words alone directly caused the death of Roy to which she was criminally culpable. Her words were her murder weapon.

This case should cause concern for not just parents of teenagers, but also for employers.

A series of text messages, from an hour away, could be so convincing as to convict someone of involuntary manslaughter should give employers pause about employee use of employer devices, and employee/coworker communication on and off the job via social media.

The behavior by Carter was essentially extreme psychological bullying, that ultimately caused a death. If this decision expands in other areas, consideration must be given the consequences of harassment and accusations of workplace violence in the workplace via Facebook, social media, Snapchat and other forms of social media, including the lower burdens of proof with civil cases.

Virginia law supports criminal conviction for certain electronic communications, but the consequence is a mere misdemeanor. Virginia code states, “If any person, with the intent to coerce, intimidate, or harass any person, shall use a computer or computer network to communicate obscene, vulgar, profane, lewd, lascivious, or indecent language, or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act, he shall be guilty of a Class 1 misdemeanor.”

Employers should develop sound policies around employee use of electronic devices and communications with coworkers, including threats, intimidation or coercion on or off the job.

If any employee claims that he or she is the recipient of hostile, threatening or bullying communications from a coworker or customer, employers should immediately take action to investigate the allegations.

Employers must secure the electronic communication and preserve it. If the electronic device belongs to the employer, it should be seized and reviewed. Employers should take prompt corrective action to cease any such behavior, and contact the police if the employer believes a crime has been committed.