Many of your employees likely have Facebook pages and other social media accounts. You may think that what they post on these pages outside of work on their own time is none of your business. However, you might want to pay attention to what they post, because they may be putting your company at risk of a lawsuit.
A plaintiff, a Hertz rental customer in Hawaii, sued Hertz because he found out that several of its employees were making fun of him on Facebook. The employees were not using Hertz’s corporate Facebook page, but were instead commenting on one of the employee’s accounts, where they used expletives to describe the plaintiff, insulted him, and joked about running over him with a car. Another Hertz employee who saw the posts brought them to the plaintiff’s attention, and when he complained to Hertz management, the guilty employees either were terminated for violating Hertz policy or they resigned.
That was not enough to stop the plaintiff from suing Hertz, though. He claimed the company was negligent in training, supervising and retaining the employees. He supported his claims by pointing out that the employee who started the conversation on his Facebook page had previously made light of a coworker injuring herself, and Hertz had taken no disciplinary action when it found out about his conduct.
The good news for employers is that Hertz won the lawsuit. The bad news is that it took over two years to win, so countless hours and dollars that should have been spent elsewhere were spent defending the case, even though there is no evidence Hertz did anything wrong. There are some steps you can take to help keep yourself out of a similar lawsuit.
1. Promote a respectful workplace. Teach employees that they should treat coworkers, customers, vendors and anyone else they encounter with respect at all times, not just online and not just during work hours. The disrespect the Hertz employees showed took place on Facebook, but it could have happened anywhere, not just online, and resulted in the same lawsuit.
2. Consider creating a social media policy. Create a policy that explains to employees what sort of behavior is and is not tolerated on social media, either on their own private accounts or in instances where they comment on behalf of the company. Make sure your policy reflects your company’s values and its other policies, such as its anti-harassment policy. (And remember this isn’t a magic solution to prevent all possible problems – Hertz had a social media policy.)
3. Train your employees on your policies and then enforce them. Once you have a social media policy, make sure to train employees on it so they are aware of and understand the policy. Teach them about your other policies such as your anti-harassment policy too. Once employees are aware of the policies, hold them accountable when they violate them with coaching or with discipline, if necessary, so that they do not continue to violate them. Make sure they understand that there will be consequences for inappropriate conduct.
4. Don’t take things too far. Remember that an employer can go too far in policing employees’ social media pages. Employers are not allowed to make employees turn over their passwords or grant them access to private accounts. Employers also usually cannot discipline employees who are discussing the terms and conditions of their employment with other employees on social media. You can be vigilant and watch employees’ public social media accounts if there is reason to suspect that there are violations of company policy occurring. Just remember to balance employees’ right to privacy and your company’s rights to make sure its policies are being followed. If you have trouble finding the right balance, don’t hesitate to contact your employment attorney for guidance.
Barnes & Thornburg LLP is a large full-service law firm that seeks to take a more entrepreneurial and cost-effective approach both to client service and its own business.
