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Employers: What third-party commitments did you make via your electronic communications policy?

September 4th, 2014  |  Joy Waltemath

Let’s say you have an electronic communications/computer use policy at your workplace (as recommended by employment counsel) and it provides, among other things, that employees are prohibited from sending or viewing inappropriate, obscene, harassing, or abusive language and materials on your systems and equipment. Your policy reserves your right to monitor and inspect communications sent, received and stored on your systems and equipment; it also reserves management’s discretionary right to take disciplinary action against employees who violate your policy.

Did you just buy yourself a wrongful death action?

An August Illinois state appellate court, treading carefully to emphasize it was only ruling on a motion to dismiss for failure to state a claim, said well, maybe.

In a case involving tragically horrible facts (and which engendered a CBS 48 Hours episode), an individual employed by an evangelical ministry in what the court termed “high-level security positions” was charged with, convicted of, and sentenced to life in prison for the murders of his wife and  two sons. In the months before their deaths, this employee apparently used his work computer to email harassing notes and death threats directed at himself, his wife and sons, and the ministry. (Allegedly, these notes and death threats were part of a plan to distract the police from viewing the employee as a suspect in his family’s murders.)

Voluntary undertaking. The administrator of the estates of the deceased family members sued the ministry for wrongful death on the basis of “negligence in the performance of a voluntary undertaking,” which is an exception to the general principle that ordinarily, a person has no affirmative duty to protect another from harmful or criminal acts by a third person. The complaint alleged that the ministry was aware of the death threats to its employee and his family, including the fact that some threats had been delivered to their home mailbox and some through the employee’s email. (There was also a negligent retention claim, but the appellate court agreed it should have been dismissed.)

The appellate court decision itself (Regions Bank dba Regions Morgan-Keegan Trust v Joyce Meyer Ministries, Inc) spells out this voluntary undertaking exception as set forth in Sections 323 and 324A of the Second Restatement of Torts, both of which are recognized in Illinois, among other states. These sections address potential liability when one undertakes to render services to another “which he should recognize as necessary for the protection of the other.”

Duty to provide security services? Although the trial court granted the motion to dismiss with prejudice, the appellate court disagreed in part. According to the estate, the ministry recognized, or with reasonable care should have recognized, that in light of life-threatening emails by the employee, providing security services was necessary for the protection of the family. The theory seemed to be that, based on the ministry’s policy that it would monitor and inspect communications sent, received, and stored on its electronic communications equipment, and that it would conduct any necessary follow-up investigation regarding the content and source of those communications (including disciplining employees who violated policy), the ministry “undertook to provide security services for the protection and safety” of the family members here.

According to the complaint, the security services voluntarily undertaken by the ministry allegedly included taking disciplinary actions for policy violations (including terminating the employee), stationing security at the family’s residence, installing a security alarm and surveillance equipment at the residence, and informing local authorities of the death threats. However, the ministry as employer apparently did not do those things, because the complaint alleged the ministry breached its “voluntary undertaking” by failing to monitor and investigate its communication systems, take appropriate disciplinary action, provide security for the family, monitor the family’s residence, and inform law enforcement of the death threats. This allegedly increased their risk of harm and resulted in actual harm to the family who, according to the estate, relied on the employer’s promises. (Media reports of the murder suggest that the police had been informed of the threats and had increased patrols in the neighborhood.)

Employer’s responsibility to identify source of threats. “When pared to the core,” stated the appeals court, the complaint alleged that the employer voluntarily undertook to investigate the source of the death threats that were made through its electronic communications systems and equipment and to provide security to protect the family and that it failed to perform, or negligently performed, these undertakings. That was sufficient to allege a duty of care under the voluntary-undertaking theory.

Was this really foreseeable? In dismissing the complaint initially, the trial court struggled with the reasonable foreseeability part, saying it couldn’t agree the ministry was “responsible for not having foreseen the brutal murder of this family” by its employee. But it was enough, said the appellate court, if, at the time of the ministry’s action or inaction, some harm could have been foreseen. Because the death threats specifically targeted the family (as well as the employee and the ministry itself, although the court didn’t mention that), it was objectively reasonable for the employer to anticipate some harm might come to them.

Duty to conduct investigation. From the complaint’s allegations, it was reasonable to infer that the ministry failed to conduct an adequate investigation of its own communications systems, “essentially electing to remain ignorant of facts concerning the source of the threats, when a reasonable person may have conducted an internal investigation,” said the court. In other words, if the ministry had figured out the employee was making the threats, would the result have been different? Accordingly, the court found the complaint stated a cause of action for wrongful death based on a voluntary-undertaking theory and should not have been dismissed.

Wow. I’m willing to bet most employers, in drafting and implementing electronic communications policies, didn’t think their exercise of discretion to monitor or investigate employees’ email use (or not) potentially would lead to defending themselves against the tragic consequences of an employee’s murderous rampage.