As we previously have discussed, implementing an employee social media policy and providing employees training about the subject may help employers potentially avoid embarrassing public relations situations. A recent case, Howard v. The Hertz Corporation, highlights such a situation.
The case arose when an employee posted on his Facebook page offensive comments about a customer, including “I seen [the customer’s] bougie a** walking kahului beach road . . . n***a please!” and that the customer was “a broke a** faka who act like he get planny money.” The latter comment prompted a Facebook post about the customer from one of the employee’s co-workers that the employee should “run that faka over!!! lol.” The employee replied to that comment with “i was tempted too, but nah, i had a white car, neva like u guys scrub da blood off.” This exchanged led to other co-workers posting offensive comments about the customer. When one of the customer’s friends, who also happened to be a Facebook friend of the employee, saw the offensive posts, she told the customer. The customer immediately raised the issue with the employee’s supervisor. The employee and all of the co-workers associated with the offensive posts either had their employment terminated or resigned.
The customer subsequently sued Hertz for negligent supervision, retention, and training. The court eventually granted summary judgment for Hertz, largely on the grounds that supervisor had no knowledge of the employee’s previous Facebook posts about customers because they were not Facebook friends. Although the supervisor was aware the employee had posted on Facebook three years earlier about the supervisor almost walking into a tree, the court found that this reasonably would not have alerted her to the possibility the employee later would make racist, homophobic, threatening or defamatory posts about a customer.
While the employer ultimately prevailed in the lawsuit, it may have avoided the lawsuit altogether if it had implemented a social media policy and trained its employees regularly regarding acceptable use of social media.