Are employees protected when they post negative comments about customers?
You know that employers have to tread carefully in their social media policies concerning what employees can and can’t say about work. But does that same leeway apply when it comes to employees posting negative comments about customers?
A case in Hawaii could give us some answers. A brief rundown:
Maurice Howard was a regular customer of a Hertz car rental agency. He alleged that Hertz employees posted messages on Facebook that constituted “an attack on [his] race, sexual orientation and financial state and condition.”
Howard pointed to several insulting Facebook posts made by Hertz employee Shawn Akina. Several of Akina’s co-workers also posted comments on Akina’s page, Howard alleged.
Howard originally sued for assault, racial and sexual orientation bias, libel, and violation of privacy. He later dropped those counts, however, and maintained his claims for negligent supervision by the employer, negligent retention and negligent training.
Here’s the rub: Howard said that Hertz management knew of Akina’s activities — he had supposedly made negative comments about customers on two previous occasions — but took no action against him or provided him with training on what is and isn’t acceptable on social media.
Akina’s early posts should have gotten him suspended or fired, Howard claimed, and added that Akina’s comments about him “caused him to sustain injuries and losses.”
The federal District Court judge ruled that Howard “sufficiently 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.” The case continues.
Bottom line: Hertz is looking at a big legal bill for a court fight, or writing a big check for a settlement.
Where are the boundaries?
As you know, a number of employer policies dealing with social media have been found to be too broad by the National Labor Relations Board, which staunchly protects employees’ right to discuss the “terms and conditions” of their work. And it seems possible that such discussion might occasionally include a mention of a specific customer.
There’s a fine line to walk here. It seems safe, however, to prohibit insulting, negative postings about specific customers, especially when they have no connection with workplace conditions.
The case is Howard v. The Hertz Corporation (link courtesy of law firm Hall Render).
