Employers may run into trouble with employees and the NLRB for interfering with protected activity if social media posts are restricted. On the other hand, employers could be liable to customers if they permit employees to post hostile statements and information. This quandary was highlighted by the holding in a recent federal court case.

Was Employer Negligent for Allowing Employee’s Facebook Post?

A court recently held that an employer may be held liable under a negligence theory for Facebook comments made by his or her employees in referencing a customer. The plaintiff was a repeat customer of Hertz car rental. Employees allegedly made multiple Facebook posts and exchanges about the plaintiff customer that referenced him being broke, his credit card being rejected all the time and his intent to put on appearances that he was wealthy.

In response to these Facebook posts, the plaintiff customer sued, alleging negligence, in addition to other theories, for the employer’s failure to properly supervise, train and retain his or her employees. The plaintiff customer charged that the employer had a duty to suspend or terminate employees if he or she becomes aware of previously posted “hostile and harassing content” on Facebook. It was alleged that these types of Facebook posts involving hostile statements and information were made on two previous occasions and that the employer’s computers may have been used for at least some of the Facebook posts.

The court held that the plaintiff customer’s allegations were sufficient to state a claim and denied the employer’s motion to dismiss. The court found that given the employer’s knowledge about the employee’s prior posts, the employer was under a duty to suspend or terminate him. Again, based on these facts, the court deemed it “at least plausible that similar conduct in the future may have been foreseeable.” In light of this foreseeable conduct, the employer should have known of the need to exercise greater control over his or her employees. As a result, the plaintiff’s claims could proceed to trial.

Lessons for Employers

Many employer policies dealing with confidentiality, external communications and social media have been found to be unlawfully overbroad. Nevertheless, there is support for the position that employee social media posts mocking an employer and criticizing other employees may be a proper basis for corrective action up to and including termination (see our previous blog “NLRB Makes It Official – Requiring Employees to Be Courteous Is Unlawful“). Employers should consider reviewing their policies, specifically social media policies, to ensure provisions are not overly broad as determined by the NLRB. However, once employers have lawful policies in place, the message from this court’s holding is clear — enforce them.

Reference: Howard v. Hertz Corp., et al, 13-00645 (D. Hawaii, Oct. 2014)