Time & Attendance
By Jon Hyman
Mar. 9, 2016
Consider the following scenario. An employee makes offensive posts on his personal Facebook page about one of your customers, which include the following:
“I seen Maurice’s bougie ass walking kahului beach road … nigga please!”
A number of other employees comment on or like the post, including a comment to “run that faka over!!! lol.”
When the customer learns of the posts and comments, he complains. You investigate and fire the offending employees.
Case over, right? Not so fast. The customer sued the employer for negligence relating to its supervision, retention and training of the offending employees.
In Howard v. Hertz Corp. (D. Haw. 1/25/16), the court dismissed the lawsuit, concluding that the employer had no duty to protect its customer from the offensive posts.
First, the court addressed the lack of duty Hertz owed regarding the retention or supervision of its employees:
Akina’s post, and many of the follow-up comments, were indisputably despicable. The statements on Facebook included confidential financial information, made light of violence, used a racist term, and ridiculed Howard’s [the customer] sexual orientation. None of this was lost on Fernandez [the supervisor] and Hertz, who responded by disciplining those involved, [all who] were either terminated by Hertz or resigned….
Hertz did have a handbook that addressed safeguarding customer information. The handbook included a discussion of employment practices of nondiscrimination and a lack of tolerance for violence. While Hertz therefore could be said to have recognized these dangers, the law does not impose strict liability on an employer every time an employee steps out of line….
Suppose, for example, that an employer knew that one of its employees once used a work phone to make fun of a co-worker. If that employee, with no history of discriminatory behavior, one day got upset at a customer and berated him over the phone in a racially offensive manner, Hawaii law would not deem the employer liable for the customer’s injury just because the employer knew the employee had once used the phone in an unrelated way or because the employer knew generally that employees might one day misuse the phone in other ways….
Howard’s argument would require employers to monitor every statement by every employee, as discriminatory statements might be made in person, over the phone, over the internet, and in letters or other written materials. This is an impossible burden.
Then, the court turned to the training issue, with a similar result:
Howard’s reference to “a lawful manner” appears to encompass the requirement that employers avoid all behavior that might even arguably be tortious. An employee’s display of mere impatience might, under Howard's definition, support a claim that an employer’s negligent failure to train the employee caused a sensitive third party to suffer emotional distress. Imposing such a burden would contravene the basic principle with respect to negligence that a defendant only has a duty of care to protect against reasonably foreseeable harm.
The law is playing catch-up with the breakneck speed at which social media has evolved and pervaded our lives. This case should give employers some peace of mind that they will not be held liable for every gaffe or insult made by an employee.
[Hat tip: Technology & Marketing Law Blog]
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