Tracy Morgan’s lawsuit against Walmart alleges that the company breached its duty to exercise reasonable care in the management of its truck drivers. Walmart, however, claims Morgan failed to exercise reasonable care for his own safety when he elected not to wear a seatbelt on the highway. So the question is whether Walmart should pay for all the injuries Morgan sustained, even if Morgan is also liable for being negligent?
A few months ago, Tracy Morgan was riding in a limo bus on the New Jersey Turnpike when he was rear-ended by a Walmart truck. The truck driver was driving 20 mph over the speed limit, and according to a preliminary report by the National Transportation Safety Board; the driver was almost at his drive time limit as regulated by federal law. Furthermore, when an employee causes injury to another during the course of their employment, the employer may be liable for the victim’s injuries.
New Jersey law provides recovery for victims injured as a result of a defendant’s failure to exercise an expected or reasonable degree of care to minimize such injury. The existence of law provides proof for a plaintiff seeking damages. Driving a certain speed limit or prohibiting commercial truck drivers to work over a number of hours, creates the presumption that adherence is an expected or reasonable degree of care that minimizes harm to others.
New Jersey also diminishes recovery in negligence cases if the injured party’s negligence contributed to his or her injuries. In Tracy Morgan’s case, if failing to wear a seatbelt was a significant factor resulting in the injuries he sustained, and wearing a seatbelt is a law thereby creating the presumption that adherence is expected to minimize harm, then liability to Walmart for the damages he sustained is diminished.
So is this fair? Tracy Morgan is outraged that Walmart is passing some blame to him for his injuries. According to him “My friends and I were doing nothing wrong.” Do people riding in limos generally wear seatbelts? If not, should it be unreasonable to expect such passengers to “buckle up.” In Walmart’s defense, the majority of people do reasonably believe that “seatbelts saves lives.” And to know this and still elect not to wear it can be perceived as a lack of care for one’s health or safety. If Morgan did not care enough to minimize the risk of injury to him, should he expect others to care enough to minimize risks of injury to him?
It should be noted that Walmart continues to hope for settlement in this matter.
Misee Harris, a Pediatric Dentist in Tennessee, was allegedly forced to resign because of a meme she posted on her personal Facebook page. The meme depicted a young black male with a target on his chest, and the caption “Open Season on Black Folks.” According to Ms. Harris, the meme was an attempt to draw attention to the racial issues involved in the Michael Brown shooting and the protests in Ferguson, Missouri. Her employer, however, viewed it as an attack on her treatment as a black person in her workplace. Both views implicate employee’s right as it pertains to social media and race discrimination.
Social media policies in the workplace remain a hot topic for administrative judges and the National Labor Relations Board. Such policies are voluntary and often invalidated by the Board because they are perceived to prohibit discussions among coworkers pertaining to behaviors or decisions in the workplace, an activity protected under the National Labor Relations Act. Postings criticizing management, coworkers, or decisions are considered protected activity so long as fellow coworkers were involved in the communications. Recently, however, an administrative law judge held that a policy urging civility in postings on social media sites was lawful. Therefore in the case of Ms. Harris, the question remains whether her postings concerned behaviors or decisions in the workplace that she was sharing with colleagues, or her personal opinion on social issues to be discussed among friends.
Even if, however, an employer does not infringe on an employee’s social media rights, it still has to be careful not to infringe on other rights by virtue of its use of social media in employment decisions. Race discrimination, for example, goes beyond a blatant adverse action by virtue of an employee’s race. It is also implicated when an employer has employment practices that are inconsistently applied with a disparate impact on a protected class. For example if Ms. Harris is the only black employee and the only employee to have her Facebook posts reviewed, race discrimination becomes an issue. Or if other employees do have their social media posts monitored and have also raised social issues but with no repercussions, their decision to address it with Ms. Harris implicates race discrimination.
Social media sites are platforms for individuals and organizations to express opinions to thousands of readers. And with news and government being instant and transparent, employers are understandably concerned about being associated with an employee’s opinion, particular one that is controversial or unpopular. To censor, however, may create more problems than it solves.