Question- Can your customer sue you if your employee disparages him?
Short Answer- Yes!
Just ask Hertz Rent-A-Car, as it was recently sued by a customer alleging negligent supervision, training, and retention. The customer alleged that Hertz breached its duty by allowing employees to use a Hertz computer to post disparaging comments on Facebook that attacked the customer’s race, sexual orientation, and financial stability. The customer alleged in his complaint that these Hertz employees had made similarly disparaging posts in the past, and that Hertz knew about the past bad behavior but did nothing to prevent it from happening again. Hertz filed a motion to dismiss the lawsuit, but the District Court for the District of Hawaii ruled that the claims for negligent supervision, training, and retention can proceed.
Although it is not yet known whether the customer will ultimately win in court, this ruling illustrates an employer’s responsibility once it discovers employee bad conduct. To minimize the threat of liability, employers that become aware of an employee’s use of a company outlet to disparage a customer or coworker should: (1) address the perpetrator, (2) put in place procedures to ensure that it does not happen again, and (3) exercise greater control over that employee’s use of company outlets. And, they must do all this while trying not to run afoul of the National Labor Relations Board’s (NLRB) prohibitions on preventing employees from using social media and discussing terms and conditions of employment!
Walking this fine line is admittedly very difficult, and it probably makes sense to consult your attorney when drafting your social media policy and when dealing with customer complaints about employee bad behavior.
Author’s contact info:
Meredith S. Campbell
Co-Chair, Employment and Labor Group, Shulman Rogers
firstname.lastname@example.org | T 301.255.0550 | F 301.230.2891