Hertz Faces Negligence Suit For Employee’s Facebook Bashing of a Customer–Howard v. Hertz
Maurice Howard is a Hertz customer who alleged that a Hertz employee (Shawn Akina) posted the following comment about Howard on Facebook:
I seen Maurice’s bougie ass walking kahului beach road . . . n*** please!
A number of Akina’s Facebook friends, all Hertz employees, allegedly posted comments on Akina’s page. Akina allegedly described Howard as:
a broke ass faka who act like he get planny money ..
The following exchange ensued:
[co-worker:] run that faka over!!! lol.
[Akina] i was tempted too, but nah, i had a white car, neva like u guys scrub da blood off.
[a co-worker comment:] What no BMW for h today?
[Akina] now he knows we got mercedes, he’s gunna drive those. It’s too bad his CC declines all the time.
[co-worker:] Hahahaha . . . he still renting huh LOL.
[another co-worker:] No more Troy his favorite boy though! Sorry Troy!
Howard asserted claims against several employees as well as Hertz. He subsequently agreed to dismiss the claims against Hertz based on theories of vicarious liability and respondeat superior, but his claims for negligent hiring and supervision remained.[Eric’s note: Howard also initially sued Facebook but wisely dropped that complaint as well.]
As to the remaining claims against Hertz, the court says that the key to a claim based on negligent hiring is foreseeability. Howard alleged that Hertz failed to supervise Akina even though it knew his character and proclivity to post off-color comments. In fact, Akina had allegedly posted information about a customer in two different instances. Howard also alleged that Akina posted his comments from a Hertz computer or premises.
The court says these allegations are enough to state a claim, so it rejects Hertz’s motion to dismiss. The analysis is similar with respect to Howard’s negligent retention and training claims. Howard alleged that Hertz had a duty to suspend or fire Akina after becoming aware of his previous Facebook transgressions, so its failure to do so was negligent. The court says that Akina’s previous posts similarly demonstrate the need for greater training.
The court didn’t mention Section 230 even though it might have offered Hertz immunity because Hertz’s liability is premised on content from a third party (Akina). Several cases have considered whether Section 230 protects employers for employee posts, including most recently Miller v. FedEx, which ruled in favor of the employer on Section 230 grounds. See Eric’s post on Miller v. FedEx that canvasses the cases, including Delfino E. Agilent and the perhaps aberrational Lansing v. Southwest Airlines. Perhaps the Section 230-favorable rulings are distinguishable on the basis that those did not involve claims that were related to the services being provided by the employer?
These cases highlight that employers are in a catch-22 when it comes to employee posts on social media that beat up customers. On the one hand, as here, they face liability from customers if they don’t take action. On the other hand, they face liability from employees who are terminated in response to posts. The Laraine Cook case from Idaho is one of many such examples. In this case we don’t know the actual content of Akina’s previous posts so it’s tough to say what if anything Hertz should have done. (Employers also should be careful to avoid the ever-watchful eye of the NLRB in crafting their social media policies.)
The case also highlights the persistent problem of employees bad-mouthing customers on social media. Note to retail employees: in the travel sector in particular, the customer experience can be hit or miss. Try not to bad-mouth us customers online to make things worse.
Case citation: Howard v. Hertz Corp., 13-00645 (D. Hawaii Oct. 23, 2014). The initial complaint.