In Howard v. Hertz Global Holdings, Inc., a Hawaiian Federal Court found that Hertz Rent-a-Car could not be held responsible for its employee’s Facebook comments about one of its customers.  While employers should welcome the outcome, it did turn on the facts, and could have produced a different result under different circumstances.  Employers therefore, should consider installing safeguards to ensure proper social media use by their employees.

The employee had posted comments over social media making fun of the customer’s sexual orientation, announcing that his credit card had been declined, accusing the customer of being a faker who pretended to have money, and encouraging people to “run that faka over!!! lol.”  In response, the customer sued Hertz for negligent supervision, negligent retention, and negligent training.  All three claims require proof of the typical negligence factors: duty, breach of duty, causation, and damages.

The Court boiled it down to whether Hertz owed a duty of care to the customer, and the answer to that question depends on whether Hertz knew or should have known of the danger the employee posed to the customer.  In doing so, the Court was mindful that there are limits to the scope of an employer’s duty of care – that the employer cannot be “confronted with an unmanageable, unbearable and totally unpredictable liability.”  An employee merely contemplating the possibility of wrongdoing is not enough to satisfy the foreseeability component; rather, the employer needs a more realistic awareness that the employee poses a danger.  Without that something extra, the Court found the duty of care would end up forcing employers to monitor their employee’s every action – an untenable result.

Here, the fact that the employer anticipated potential misuse of social media regarding its customers by implementing a social media policy in its handbook did not establish Hertz knew of the danger this employee posed.  Even though Hertz had previously reprimanded the employee for making inappropriate Facebook comments about the customer years before, the employee’s manager at the time of latest comments did not personally know of the previous incident, and the previous comments were merely that plaintiff almost walked into a tree, which the Court considered far more “innocuous” than the “indisputably despicable” comments at issue.  Without more, Hertz could not have reasonably foreseen the danger this employee posed to the customer.

The Court similarly found that Hertz had not negligently trained the employee.  The customer said Hertz had a duty to train its employees to conduct themselves in a lawful manner in their interactions with their customers and the public.  But the court was unpersuaded, finding that this would essentially require employers to train employees to avoid all behavior that is arguably tortious – well beyond the requirement that they train only as to foreseeable risks.

Key Takeaways for Employers:  Hertz had many facts on its side in this case.  Other employers may not be so lucky.  The answer is not simply to bury your head in the sand to avoid these claims.  Remember: the negligence standard not only looks at whether you actually knew, but whether you should have known.  Here, Hertz did not know and could not have known.  But employees often take actions in such a way that an employer should have known about the possible danger an employee may pose to others in the future.  To avoid these claims then, employers are well-advised to install necessary safeguards.

Like Hertz, implementation of a social media use policy is a preferred option.  Also, employers should have complaint and investigation policies that allow coworkers to come forward and provide a credible threat of disciplinary action.  Here, Hertz not only warned the employee when she wrote the first “innocuous” post not to do it again, but also it quickly fired her once it learned of the subsequent, highly inappropriate posts.  Further, if an employer knows of specific dangers certain situations pose, then it should consider training its employees on how to minimize the risks involved.