Why it matters
Taking a commonsense approach to a lawsuit seeking to hold an employer responsible for an employee's social media posts about a customer, a federal court judge in Hawaii noted that "the law does not impose strict liability on an employer every time an employee steps out of line," dismissing the suit. A Hertz employee posted disparaging and discriminatory remarks about a client on his Facebook page that coworkers liked and commented on. When the customer saw the post, he sued, claiming he suffered reputational harm and post-traumatic stress disorder. Considering claims for negligent supervision, retention, and training, the court said Hertz owed no duty to the plaintiff with regard to the employee's social media posts. Although the employee had posted disparaging comments before, the comments about the plaintiff were not foreseeable, the court determined, as his supervisor was not friends with him on Facebook and would not have seen the prior comments. Antidiscrimination language in the employer's handbook did not create a specific duty with regard to social media, the court added, as such a duty "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."
On February 27, 2012, Maurice Howard visited a Hertz location at the Maui Airport. Later that day, Hertz lot manager Shawn Akina saw Howard walking near the location and posted, "I seen Maurice's bougie ass walking kahului beach road … n**** please!" Three coworkers commented on his post, with Akina posting additional comments in response including that Howard was "a broke ass faka who act like he get planny money," and "it's too bad his CC declines all the time." A fourth coworker liked the comments.
A Facebook friend of Akina's showed the post to Howard, who visited the Hertz location to complain. Akina's supervisor reviewed the post and found it offensive and inappropriate, as well as a violation of Hertz's corporate policy. Akina and three others were either terminated or resigned as a result.
Howard followed up with a lawsuit against Hertz, Akina, and the other employees. He alleged that he suffered post-traumatic stress disorder and was financially damaged because he lost customers as a result of the post. Hertz moved to dismiss the suit and U.S. District Court Judge Susan Oki Mollway granted the motion with respect to some of the claims.
She let Howard's claims for negligent supervision, negligent retention, and negligent training move forward, however. Hertz then moved for summary judgment on these remaining claims.
The relevant question for each claim was whether Hertz owed Howard a duty, with foreseeability as the pivotal issue, the court said.
With respect to negligent supervision and negligent retention, Howard argued that Hertz owed him and other customers a duty of care to prevent Akina from posting harmful social media content at work. He pointed to evidence that in 2009 or 2010 Akina posted a Facebook comment that "made light" of his supervisor after she nearly walked into a coconut tree and made previous negative comments about a customer online.
But the parties agreed the question of foreseeability should be viewed from the perspective of Akina's supervisor, and she testified that she had no knowledge about the prior post about a customer, Hertz countered. She wasn't friends with Akina on Facebook and just because other employees were aware of the post, that knowledge could not be imputed to the supervisor.
The court agreed. "That some of Akina's peers knew of his alleged posts about customers does not create a genuine issue of material fact as to whether … his supervisor also knew of such posts," the judge wrote. The post about the supervisor and the coconut tree also failed to support Howard's foreseeability argument, the court added, because she viewed it as "fairly innocuous" and unthreatening.
"However imprudent the prior post may have been, its content gives no indication that Akina would later make a racist, homophobic, or threatening post about a customer, or that he would post financial nonpublic information about a customer," Judge Mollway said. "Two or three years elapsed between the post about the tree and the post about Howard, making the likelihood of Akina's offensive post about Howard difficult to foresee. The post about the tree did not give rise to a duty on Hertz's part to prevent the harm that eventually occurred."
The court was clear that Akina's post and many of the follow-up comments were "indisputably despicable." But this fact wasn't lost on Hertz, which disciplined all of the employees involved, the court noted. "Howard has not demonstrated the existence of a genuine issue of material fact that [the supervisor] or Hertz foresaw or should have foreseen the danger posed by Akina and should have been more closely supervising his Facebook use earlier or should have fired him earlier," the court said.
Howard alternatively urged the court to base a duty on Hertz's employee handbook, which contained provisions addressing safeguarding customer information, 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," Judge Mollway wrote.
Claims of negligent supervision and negligent retention require an inquiry into whether the employer knew or should have known of the danger posed by the particular employee who caused the injury, and the handbook alone was insufficient for Howard to establish a duty.
"Hertz's acknowledgement of possible dangers in its handbook does not suffice by itself to establish a duty of care running from Hertz to Howard," the court said. "It is reasonable and proper for employers to warn against possibilities, but nothing in Hawaii law equates the recognition of possibilities, without more, with the establishment of a duty. Here, the only 'more' is Akina's Facebook posting some years earlier about seeing [the supervisor] nearly walk into a tree. 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."
Turning to the question of negligent training, the court again found Howard's failure to establish the duty element fatal to his claim. The duty to train must be tied to a particular job task that poses a foreseeable risk of harm if performed without adequate training, the judge explained, such as a security guard taught how to apprehend a suspected shoplifter or a social worker trained to handle psychiatric patients.
Howard was unable to identify any specific aspect of Akina's, his supervisor's, or any other Hertz employee's job that posed a risk of danger to Hertz customers as a result of the company's failure to train. Although he suggested the employer had "a duty to properly train its employees to conduct themselves in a lawful manner in their interactions with their customers and the public," this "limitless duty" would require Hertz to train its employees to avoid all unfavorable interactions with or relating to customers, the court said, and could not serve as the basis for a negligent training claim.
Attempts to establish a contractual duty (based on a letter from Hertz's CEO to the company's employees) and argue the plaintiff was in a "special relationship" with Hertz as a business visitor similarly failed to sway the court. And even if Hertz was under a duty to train Akina and others to prevent the harm allegedly suffered by Howard, the plaintiff provided no evidence that such a duty was breached, making no attempt to describe what additional training Hertz should have provided, the court said.
Judge Mollway granted Hertz's motion for summary judgment on all of the remaining claims and directed the clerk to close the case.
To read the order in Howard v. The Hertz Corporation, click here.