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The Clay Nissan Boycott

by Timothy Martell on August 10, 2012

boycott clay nissanSocial media represents a new dawn for the marketing industry. The level of interaction it enables between business and consumer is nothing short of revolutionary. Most would agree that this is a step forward; more communication is always preferable to less. However, it is not an avenue of communication that businesses can control, or even truly mediate. Social media creates a dangerous duality, in that it can make or break a business with equal aptitude.

Two brothers have started a boycott against their sister’s former employer, Clay Nissan of Norwood. Their sister, Jill Colter, has stage 4 brain cancer and they claim that she was wrongfully terminated by the dealership. Both sides have taken to social media to garner support, and now the issue is heading to court.

Jill took a two month leave of absence to recuperate from intensive whole brain radiation treatment. Once she returned to work, Jill felt she was completely capable of performing her duties and arrived on time or early every day. Just three weeks after her return, she was terminated. When she inquired about the reason, she was informed, “We are going in a different direction.”

Massachusetts has an At-Will Employment rule. This is defined as an employment relationship in which either party can break the relationship with no liability. However, there is also the U.S. Family and Medical Leave Act, which protects people’s right to take unpaid, job protected leave for as long as 12 weeks. To terminate someone’s employment as a result of illness covered under the FMLA can be regarded as discrimination.

Was Jill a victim of discrimination? Her family certainly thinks so. Her brothers, Jon and Adam Colter, started a Facebook page calling for the boycott of Clay Nissan of Norwood. The story went viral and exploded across the web. Their Facebook page’s about section states: “www.facebook.com/boycottclaynissan went live about five weeks ago. Since then we have received about 15,000 supporters. Private messages are in the hundreds.”

Once Clay Nissan got wind of the boycott page, they released this official statement: “With regard to the campaign against Clay Nissan of Norwood, we understand this is an emotional topic further fueled by misinformation and efforts to block communication from the Clay family. We encourage you to visit ClayFamilyCares.com to learn the truth about our actions. In short, we were aware of the employee’s illness prior to hiring her, and after learning of her firing we invited her back to work at our dealerships.”

According to the Boycott Clay Nissan Facebook page, this statement is far too little, and way too late. The Colters maintain that they received no such offer until the boycott was in effect for over three days, which was initiated about two weeks after Jill was let go. “This is Clay doing damage control, public relation, and spin and more spin,” wrote Adam Colter.

This is not the first time that a Clay dealership has engaged in questionable behavior toward its employees. Clay Nissan’s parent company, Clay Family Dealerships, Inc. was investigated for knowingly failing to pay owed overtime wages to employees. That investigation ended with Clay paying nearly $280,000 in back wages, restitutions and fees.

At this point in time, both sides have retained legal representation. The Colters are suing Clay for wrongful termination of Jill, claiming they violated the FMLA. At the same time, Clay is counter-suing the Colter brothers for defamation brought about by the boycott, with an emphasis on the content of the Facebook page.

Judging by the timeline and statements made on both sides, it is difficult to say who is telling the truth. The only thing we can be sure of is who is talking louder, and that is unequivocally the Colters. Their Facebook page is currently over 25,000 strong, including thousands of comments across hundreds of posts. Clay is trying to reach out via their ClayFamilyCares website and issued statements, but they are finding it difficult to compete with the wildfire spread of internet vitriol.

That may be part of the problem; the fact that Clay is trying to compete at all. Jon Colter has said that initially all they wanted was an apology but the dealership was unwilling to comply. Instead, the dealership has attempted to defend itself at every turn; as though any amount of PR could turn back the tides. The simple fact is, right or wrong, Clay has already lost in the court of public opinion; at some point, all that is left is to apologize and move on.

That is what can make this kind of social media campaign so dangerous to businesses; companies can lose a war that they are only peripherally aware they are fighting. Every day more people are seeing the Boycott Clay Nissan Facebook page. When they view the page, they are seeing the story as presented by the Colters. Clay can issue statements but each and every piece of information is filtered and posted by the Colters. The brothers also have complete control over comments on the page, meaning the Clay family cannot even defend themselves on the page that they are being attacked on. Is it fair? No. Are the Colters telling the truth? Evidence suggests they are, but in the end, it doesn’t matter.

In the world of social media, when a person fights a business, the roles are already cast. Despite any efforts to the contrary, despite who is truly right or wrong, the faceless corporation will be viewed as the villain. It is the innate characteristic of consumers to band together against a business who is being accused of a wrongdoing. We have all been there; when you hear a story of some big-box store screwing someone, how often do you even attempt to see things from the company’s point of view? It’s not often, and frankly, you shouldn’t have to try.

It is the onus of any business to maintain its own image in the eyes of the public.

This is what Clay Nissan, and the entire Clay family, needs to accept. They can go through the defamation lawsuit, and, as Jon Colter says, “They’re suing us, but it could be two to four years before the site is taken down, and by then, it will be at half a million.” The damage has been done. It was done the second that Facebook page went viral.

It’s unfortunate for Clay, but it provides an excellent example for other dealerships. Social media is no longer a supplementary part of your main marketing strategy. It deserves and demands constant investment to keep your business spotless in the eyes of your customers. When it comes to Clay and the Colters, we don’t know who is in the right and we’ll reiterate: it doesn’t matter!

If Clay had someone competent in charge of managing their social media presence, they would have known about this boycott page the second it went up. Once they knew about it, they could have apologized and moved the entire discussion out of the public eye before it caught fire.

Instead, they have a boycott, a lawsuit, and an ugly blemish on their company’s reputation. But hey, at least things posted on the internet aren’t there forever…right?

{ 12 comments… read them below or add one }

lisa August 20, 2012 at 11:47 am

I think this story should ask some questions that i tried to ask at the boycott site.
1. how long did this woman actually work for Clay?
2. Why didnt she reach out to the owner before starting the boycott?
3. Why picket in Newton and not in Norwood where she worked?
4.Why does the boycvott site not show what the Clays have done for her..ie: Paid her a years pay. Let her go on FLMA when she wasnt working there for a year? Offered her job back at any store? and the clays responce? all of these things would shine a different light on the subject.
5. Why do they delete the things that are written supporting the clays?
6. Why does Adam Bash people who do support the clays..ie: the huge post about Lisa Z that he then stalked her to the modells site? and gave info about her?
7. Where had Adam Colters FB page gone to? Was he banned from FB for harrassing others?
That is off the top of my head. there is a lot being done to punish a company whom I feel has done way too much for one girl. She got fired for not getting along according to the Clay site. If they feel it is something else why didnt they just sue clay? they want this bashing of clay to go on and I cant figure out why??

Timothy Martell August 20, 2012 at 12:39 pm

I think you’re missing the point of the article, Lisa. When your business model is centered around serving the public, then you (the business) has to realize that the “truth” of the matter is irrelevant. The only thing that matters is the perception of truth.

Ms. Colter could ride a broomstick to work every day, but the only thing the public will ever care about is the fact that a business (the big bad man) fired a cancer patient on her death bed (that is what is perceived).

Also, Clay has had some really bad pr lately with the wage and hour issues (they were not the only dealership with this issue and many other dealerships still have this issue). But Clay was unlucky enough to be a target of the AG. Now you combine that with the allegation that they have fired another employee before who was caring for a child with cancer and you’ve got a runaway train of bad pr.

Was Clay right for firing the employee? Who knows. You know who cares though? No one. That doesn’t sell news. The public love to come together in support of the underdog against a “big bad business”. The Clay’s would have been wise to have a PR firm or marketing company that specializes in social media to handle this situation.

The right move would have been to put to rest the public perception by publicly apologizing and dealt with the colters in a more private venue by moving it out of the public spotlight of social media. In a world of instant communication, businesses can no longer afford committee meetings with pr firms to figure out what the next move is. Apologize first. Promise investigation. Do what is promised. Move the issue to a private venue. Get back to business.

lisa August 20, 2012 at 4:13 pm

What a sad small world we live in now that the truth no longer matters and perception is the the new reality. I think the courts will be full of these new cases and no one will ever be unharmed once an attack begins. I feel this will do damage to cancer patients around the country. Any one who discloses they have cancer in an interview most likely wont be hired now. Company’s DID learn from this but what they learned is to not hire people with cancer, as the Clays did knowing she was sick. It is sad. I think the brothers are also making their sister unemployable also. Any dealership seeing that mess will more than likely not want her now. The whole situation has gone out of whack. It is a viscous attack on a family business .. in the end the Coulters may damage many lives over perception.

Timothy Martell August 20, 2012 at 5:20 pm

I don’t think this harms cancer patients. This is an example of what can go wrong when you mishandle a human resources issue in a public arena. “Perception is reality” is not a new concept, its just never been as public as it is now with social media.

Having worked in automotive retail for over 20 years, I can tell you this is not a new issue. In Massachusetts, the termination of an employee is not something to be taken lightly. ESPECIALLY if it is someone who could have a disability. There are HR protocols that must be adhered to. The Clay organization is well aware of this. This is clearly the mistake of one manager who took action, probably without checking with his superior or a HR officer.

But the owner is ultimately responsible for the actions of their employees. Its their job to ensure they are properly trained. That they know proper protocol. And that is something that is commonly NOT provided in automotive retail. Most people in management positions in automotive retail got there by being good foot soldiers, not because they had some kind of superior skills or training.

Sales managers, were good sales people or good F & I people. GSM’s were good sales managers. GM’s were good GSM’s (or the owner’s son or daughter). There are rarely college degrees in business management. Most GM’s don’t attend dealer academy.

Thats just reality. It doesn’t matter what happened or how it happened and that is something the Clay’s should have recognized right away. At the end of the day, a woman with stage 4 cancer was fired — wether or not it was with or without cause it should have immediately been recognized as a PR nightmare.

When an employee is terminated, the owner should know about it before the termination is carried out. It should have been stopped before it ever happened. But even giving the benefit of the doubt and supposing this “rogue” manager acted without consent. The right move would have been to reach out immediately, apologize and undo the foolish action of the manager.

Then no FB page gets built. No media frenzy ensue’s. No old bad press gets dredged up. No one boycotts. Its really a no brainer.

As for the Colter’s, I might not have taken the same approach myself. Clearly for them, this is a personal issue. How far would you go to protect your sister, brother, mother, father? Would you be worried about fair play if you thought someone was trying to hurt a loved one — in the face of potentially FATAL consequences of not having medical insurance caused by alleged wrongful termination?

It’s true, a lot of us would just sit there and take it and… die, I guess. The Colter’s are not going quietly. Clay has no one to blame but themselves. Anyone that’s been around this game as long as the Clay’s should know how to handle a situation like this. Poor management, poor PR handling, poor reactions, slow to respond and get a handle on it.

Do I think they would just assume do the right thing? Sure! I think their actions show that. But there’s an old italian saying that loosely translated says… “You can’t put the shit back in the donkey.” Once its in the public eye, its too late. And that’s really where Clay failed.

Paula August 20, 2012 at 10:37 pm

Good article, Tim! My two cents:

I agree that this social media campaign is a PR nightmare for Clay, particularly because the Colter boycott site now has over 30,000 followers who are hearing only one side of the issue. Countless posts advocating for the company have been deleted and those posters state they were subsequently banned from the site. The boycott followers are being exposed to information presented to them that has been filtered by the Colters. As an owner of a Facebook page, that person does have the right to delete posts that are not in line with the intent of the page – or even simply not liked by the page owner. The Colters even admit to doing this on their page, so their boycott followers are forewarned. Yet I am sure that many of these supporters do not bother to read all of their liked pages ad nauseam and simply “like” and “share” the page, fully believing that there is nobody out there at all who is supportive of Clay and willing to enter into a healthy discourse of the matter on the boycott site. Personally, at first glance I concluded from the information I obtained from boycott site that a big company terminated a very sick woman and is now suing her dedicated brothers for notifying the public about such an atrocity – and nowhere I could find on the site an explanation from the Clay side. I first assumed that this all MUST be true and that Clay must be a heartless employer if their own employees are not even publicly defending the company. I believe in freedom of speech and believe the Colters have a right to delete posts they do not want on their page, and even picket outside of the company. HOWEVER (a huge however)…Clay does have the right to file a defamation suit against the boycott page owners if there are untrue comments posted by the page owner that hurt Clay financially. We will let the courts sort out the facts of this nightmarish case that was fueled by the virility of social media. It would be interesting to see if the court implements an order directing the Colters to provide the link of the Clayfamilycares website in their page’s “about” section. I’m on the fence with that one, though.

In terms of my opinion of the case, I believe the handling of Jill’s termination was very risky in the first place and was grossly mishandled. I don’t believe many would argue that point, particularly the Clays. Whether or not the Clays themselves were involved in that decision is what I believe is a main issue in driving this viral boycott. Surely, many of the boycott supporters may believe that the owners themselves were involved with the decision, while the Clay site indicates the owners were not notified of the termination by the manager until they learned of the Boycott Facebook page’s existence. On the Clayfamilycares website, it was outlined in a posted letter from Clay to Jill that her firing was not in line with the family values and re-employment was offered. Another offer of a year’s salary was made should she wish not return to work at the dealership. This, at least to me, is an apology and an offer to make things right financially and morally – one that is legally “safe” for the company. The year’s salary offer had no other apparent caveats and the Clay attorney indicated that Jill’s acceptance of the funds would in no way be considered a settlement of any legal action, present or future. At this point in the boycott, it is not readily apparent to me what else the boycott can accomplish for Jill’s interests. The boycott site indicated that Jill has filed her case with the Massachusetts Commission Against Discrimination and has retained an attorney for the termination issue. Personally, I see no further reason for a public request to boycott this company that will serve Jill’s best interests. Although the company mishandled this issue from the start (in my opinion), what’s done is done. The Clays were late in their response to the termination, but finally addressed the situation. The Clays could do more, however, by indicating the status of the manager who terminated Jill without input from corporate and went against the company values. However, this could be another lawsuit for the company.

I wouldn’t be surprised to see this case in future HR, PR, management, legal, and social media textbooks. It brings to light the overwhelming power of social media and it’s economic and legal implications.

Timothy Martell August 21, 2012 at 9:12 pm

Thanks for contributing Paula. You make lots of fair points. But (and this is precisely what the Clay’s have missed here), because the Clay’s ARE justified in suing the Colter’s doesn’t make it a good idea. And that seems to be the one thing they fail to learn even in the face of the tremendous momentum this boycott has created.

In the eye’s of the law, they may end up being completely correct! And that could cost them even MORE! Say they do force the Colter’s to take down their page. Whats to stop one or even many of the 30,000+ supporters of that page from taking up the charge and spinning of a dozen more “Hate Clay Nissan” pages?

Will they sue…everyone?

I doubt it. The judge certainly can’t “make” the Colter’s publish content of any kind, its a violation of the first amendment. In order for a deformation suit to be won by Clay, they would have to prove that the Colters published untrue information that led to financial loss. Financial loss in and of itself does not a deformation claim make.

Also, the Colters would be wise to print some sort of “Terms of use” of the site. Included something stating that only the views expressed by them directly are their views and the comments and contributions of others using the page are the views of the individuals and not the Colter family…. etc

I think you are right, though, this is one for the record books.

Alan August 22, 2012 at 1:02 pm

Very interesting article Timothy and yes, I do get it. I also agree that Clay is justified in commencing a suit against the Boycott site or sites and their originators. I believe that because, even though the law has not caught up with the technology, it needs to and it needs to do that in a hurry. It’s a complex thought – I will try.

Suppose that someone starts a site (with the purpose of causing economic harm on an entity) on Facebook and makes it a one directional blog site. That is; no commentary will be allowed. Only the site can speak. If the site speaks full truth then there is no slander. If the site speaks partial truth then there may be slander. But, the site, IMHO is not obligated to allow commentary in the first place. Thats not the case here.

Lets say that the site decides to allow commentary but deletes and bans commentary and commenters when the comments do not align with the purpose and cause of the site owners. I think that this falls into the category of unprotected speech. There are many examples of unprotected speech that we are all familiar with and this is one of them. Freedom of speech is NOT unlimited. I think that there is an obligation to have both sides told when commentary is allowed. This is the basis for the Clay lawsuit as I read it. If one filters out different points of view then the reader will get only one side and not be able to consider alternative viewpoints.

Obviously the courts have not completely grappled with this yet. This case is important in as it forces the issue for the courts going forward. And yes, again, it doesn’t matter about the suit because Clay is suffering and it would have been better to nip this in the bud. On the hand, the owners of the boycott site are clearly risking a great deal with this strategy – even if they would ultimately win the lawsuit years from now – in the same sense, all of that legal defense money could have gone to their sister in need or to charity. It cuts both ways.

You mentioned, terms of use.. in fact, the site did have terms of use stated and it was made clear that commentary that did not conform to their mission would be eliminated. I don’t think that matters. Only allowing 1/2 the story on an economically damaging boycott site is a matter for the courts and not covered by terms of use. In the same way that you can’t make any other crime go away with some stated terms of use upfront.

Finally, you mentioned about 30,000 likes and a multitude of other sites that could pop up similar to the original site. Facebook has a safety mechanism for this. Duplicate or similar sites can and have been eliminated upon protest and I think that any viral labeling campaign based on a multitude of independently operating Facebook sites would be quashed with this mechanism.

A very interesting story Timothy.

Timothy Martell August 24, 2012 at 1:53 pm

Alan, you raise some nice points, however, I think your thoughts on the first amendment are a bit off base. There is no caveat that requires any person or entity to present two sided unbiased speech. My God, if there were, the entire news media machine would be behind bars!

Think about it, Alan, the whole point of the 1st amendment is to PROTECT unpopular speech. Meaning if you believe in or stand on one side of the issue at hand, it is your RIGHT to emphatically substantiate your point based on your own theories and opinions regardless of fact. What do you think you see every time a political ad runs on television? If deformation suits were so easy, most of the political body would also have paid massive amounts of fines.

The Colter’s are in no way obligated to present both sides of the argument. To the contrary, it only makes sense for them to go to any legal means to control the flow of information in order to achieve their desired goal. This is why Clay never had a chance from the beginning and would have been better suited with an apology and quickly moving on.

The right move would have been to reach out both to the sister and the rest of the family, bring them ALL in for a private meeting, express their empathy for the terrible mistake, offered her job back in any agreeable capacity at any of their dealerships. Most of what I just stated was ultimately done, but time was of the essence here. They waited to long to act.

They waited until the problem took on a life of its own and manifested in the public arena. This is where the mistake was made.

As for Facebook’s mechanism’s for control, I can tell you with absolute certainty that this would play no role in this case. Recently it has been discovered that there are 87 million fake accounts on Facebook. I would say their methodology is suspect at best.

One of the reasons that so many large companies have pulled their ad campaigns from Facebook is that it was discovered that many of these fake accounts were responsible for clicking on paid ads which was generation false revenue for Facebook. If they are inept to resolve issues like these where real criminal fraud is taking place, there is virtually no chance that they get involved with a situation like this and certainly not to the benefit of a company that is being demonized by public opinion.

Thanks so much for contributing! This is exactly the kind of debate that makes us the greatest country in the world!

Paula August 24, 2012 at 11:01 pm

Alan,

You raise good points on the freedom of speech issue, but I disagree with your interpretation of the law. My understanding of the law is that only public (governmental) entities that create a public forum (including Facebook pages) are required to allow people to voice their protected freedom of speech when the page allows for commentary. Private individuals and corporations do not fall under this category. I noticed that even the moderator of this blog (Tim?) deleted prior comments made here, for whatever reason. He owes us nothing. This is Wikimotive’s site and the owner is free to use discretion when determining what material he chooses to be posted, just like the Colters with their boycott page.

Just this week, the Honolulu Police Department became a defendant in an action that involved their deletion of random comments of protected speech on their official Facebook page. Some users were subsequently banned by the page’s administrator. The plaintiffs maintain that because it is a state sponsored public forum, all protected comments should remain on the site. The HPD page however, differs from the Colter’s private Facebook page, in that it is representative of a governmental entity. The Court has yet to issue a ruling.

While I personally believe the Colters’ boycott has gone too far at this point, they are using their freedom of speech to mount this campaign. The Courts will decide if defamation or other laws were violated. However, as Tim pointed out, the Court adjudications will not make much difference in the matter, as damage has already been done to the Clays in the court of public opinion.

Although a firm believer of freedom of speech, I am also disturbed by the fact that social media has allowed this freedom to effectively take down companies prior to the facts being adjudicated. To paraphrase the slogan voiced on the Colter’s page regarding Jill’s termination, just because you can, doesn’t make it right.

Sometimes these types of social media boycotts are not fueled by personal opinion alone, but by other motives that may be less apparent to the supporters (personal financial gain of the boycott originator, etc.). People need to be vigilant in knowing exactly what causes they support and not be so quick to click the Facebook “like” button without having considered the views of both sides of the issue. In this case, I bet that mostly all of the Clay boycott supporters simply clicked the “like” button after hearing only one side of this particular case. To them, the Clay side is irrelevant.

Alan August 26, 2012 at 2:45 pm

Yes, good discussion for sure.
An old saying goes: “Your right to swing your fist stops at the tip of my nose”.

If somebody were to put up a Facebook site which argued for White Roses as being the prettiest and then quashed any commentary and banned people from offering opinions that Red Roses are actually the prettiest then that speech would be fully protected under the first amendment.

If somebody were to put up a site asking for a boycott of a specific Bagel Restaurant because they have cockroaches and then banned any commentary stating the opposite then that speech would not be protected under the first amendment.

The difference? The fist is coming in contact with the nose.
When harm is done with lies or by omission or by half-truths then its not protected.
This is the basis for the Clay vs. Colter lawsuit. See page 6 paragraph 25 of the document Complaint-Clay_v_Colter.pdf on the site http://www.clayfamilycares.com/.

This is what makes this case so important and so interesting. Ultimately the judge has to rule on a preliminary injunction based on this harm and whether to believe that a slander case would ultimately prevail in the face of the first amendment. Alan and Timothy and Paula can argue all day about this. It will be the court who speaks the loudest. So lets all agree to disagree for now.

As for the 87 million fake accounts on Facebook. Those are 87 million accounts with 87 million different handles (names). Vetting that is a daunting job and would require a dramatic change in the way Facebook signs up new accounts. What I’m talking about is dozens or hundreds or even thousands of clone boycott accounts all with very similar naming like: “Boycott Clay Nissan” or “Boycott Clay Cars” or “Boycott Clay Family” popping up on Facebook. This would be very easy to report as similar siting and Facebook would not be so lame to enforce this. What might even be more centralist is if the original boycott site started to provide instructions on how to set up these accounts and/or started to link to them. In the rush to enforce the elimination of the redundant sites, Facebook could see the original site – the one with the 30,000 likes as the trouble maker and zap that one too. One cannot dismiss this possibility.

Finally, Timothy; wikimotive appears to me a media and/or media assisting company who gets directly involved in their clientele’s causes via services or published articles etc…

Its standard practice in the media business to disclose any financial ties to clients when the reporting or assistance becomes closely linked.

Do you feel any obligation to disclose as to whether wikimotive is a paid client of the original boycott site?

Steve September 9, 2012 at 7:04 pm

It will be interesting to see how the courts handle such a case, but the truth is, in the end…no one wins. One terminated employee still has a very terminal cancer and a company’s reputation is irreversably damaged.

Sad any way you look at it….

Alan September 15, 2012 at 9:46 pm

For sure no winners. Only degrees of loss.

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