Why it matters: Social networking continues to pose serious challenges for employers, particularly in light of a recent decision from a federal court in Hawaii. A judge denied an employer’s motion to dismiss a customer’s suit for negligent supervision, training, and retention based on disparaging Facebook comments made by an employee (including that his credit card “declines all the time”). The suit also claimed the inappropriate posts were made on the employer’s premises and using an employer’s computer. By alleging that the employer was aware that the employee had made similar off-color comments about a customer in the past, the court said the plaintiff sufficiently stated a claim for training and/or a duty to suspend or terminate the employee. Allowing the suit to move forward sends a message to employers to establish a social media policy – and enforce it.

Detailed Discussion

A customer of the Hertz Corporation, Maurice Howard, filed suit against the company after employees posted comments on Facebook he described as “an attack on [his] race, sexual orientation, and financial state and condition.”

The instigator, Shawn Akina, allegedly wrote, “I seen Maurice’s bougie ass walking Kahului beach road … n*** please!” Three other Hertz employees chimed in on the post with derogatory comments about Howard, calling him “a broke ass faka” and writing that “it’s too bad his CC declines all the time.”

Howard also alleged that Hertz was aware of earlier posts made by Akina about a different customer as well as a supervisor, and that Akina used Hertz property to post the comments.

Hertz moved to dismiss the suit. While Howard agreed to the dismissal of certain claims (including vicarious liability and intentional infliction of emotional distress), he stood behind claims for negligent supervision, negligent training, and negligent retention.

U.S. District Court Judge Susan Oki Mollway denied the motion to dismiss the remaining claims, finding that Howard sufficiently alleged facts to support each of the three causes of action.

Hertz was put on notice of the need to exercise a greater degree of control or supervision over Akina, the court said, based on his alleged prior inappropriate Facebook comments. “Howard has alleged that Akina used a Hertz computer to make at least some of the Facebook posts, and that Hertz knew of Akina’s history and propensity for posting ‘hostile statements and information’ about customers,” Judge Mollway wrote.

Taking the allegations as true, the court said Howard’s claim of negligent supervision could move forward.

Similarly, Hertz’s knowledge of Akina’s prior posts triggered a duty to suspend or terminate him, providing support for Howard’s claim of negligent retention, the court found.

As for the negligent training claim, “Howard sufficiently alleges that Hertz knew or should have known of the need to exercise greater control over Akina,” the judge said. “Howard alleges that Akina posted ‘hostile and harassing content’ on Facebook about a Hertz customer and Hertz manager in the past. It is therefore at least plausible that similar conduct in the future may have been foreseeable.”

Hertz may have also breached a duty to train employees about the issue of posting information about customers online, the court added, allowing the suit to move forward on all three causes of actions.

To read the opinion in Howard v. The Hertz Corporation, click here.