Howard v. Hertz: District Court Finds Hertz Not Liable for Employees’ Social Media Posts

Digest Commentary First Amendment

Howard v. Hertz Corp., No. 13-00645 (D. Haw. Jan. 25, 2016), Slip Opinion hosted by Wolters Kluwer.

The District Court for the District of Hawaii granted summary judgment in favor of the defendant, Hertz, in a negligent supervision, retention, and training lawsuit brought by a customer, Maurice Howard.  Howard initiated the case after Hertz employees wrote disparaging comments about him on Facebook.

The Technology & Marketing Law Blog and National Law Review provide commentary.

After visiting a Hertz car rental office, Howard discovered an employee published negative comments about his sexual orientation, finances, and credit worthiness on Facebook.  The posts also called Howard a racial slur and discussed running him over with a car.  A total of four employees participated in the online discussion.  Howard subsequently brought suit against Hertz, alleging it was negligent in supervising, hiring, and training the employees.  Judge Susan Oki Mollway of the District Court of Hawaii presided over the case.

The court first analyzed the negligent supervision and retention claims, and found that Howard did not show that Hertz owed a duty of care to prevent its employees from publishing harmful social media posts.  Under Hawaii law, a defendant owes a duty to prevent harm to the plaintiff only if the defendant could reasonably foresee the harm.  Accordingly, the court examined whether the supervisor of the employees knew or had reason to know they would post social media content harmful to Howard.  Although one of the employees had previously talked online about another customer, the supervisor had no reason to know of that incident since she was not Facebook friends with the employee.  The supervisor was aware of a past post the employee had made about the supervisor, but the content in that instance was not racist, homophobic, or threatening, and thus did not make the comments about Howard foreseeable.

Looking outside the employee’s past actions, the court also rejected Howard’s argument that Hertz’s policy on employee social media practices created a duty.  Permitting an employee handbook, taken alone, to create a duty would “require employers to monitor every statement by every employee,” and thereby place too unpredictable and heavy a burden on employers.

The court likewise rejected the negligent training claim.  Howard alleged that Hertz had a duty to train its employees to interact with customers and the public in a lawful manner.  The court found, however, that employers have a duty to train only in regards to specific job duties that pose foreseeable harm.  Requiring employers to train workers to avoid all unfavorable customer interactions would hold employees liable for unforeseeable injuries.

Writing for the Technology & Marketing Law Blog, Venkat Balasubramani suggests that this case helps answer the question of whether employers will tend to be liable for the online behavior of employees. Though he admits that the question has not been fully decided, he argues that the answer seems to be no. Balasubramani further argues that in this case, Howard’s legal strategy was not a novel approach, and that the court reached a correct outcome.

The National Law Review summarized the case before listing potential implications of the ruling for employers. That analysis suggests that the current case was highly fact specific, and that other employers may have greater difficulty demonstrating that they should not have had knowledge of an employee’s online behavior.  The article also recommends that employers create a social media policy, a recommendation supported by the holding in this case that such a policy does not create an additional duty on the part of the employer.

Sheri Pan is a third-year student at Harvard Law School interested in the intersection of technology and public interest law.