Читать книгу Employment Law Update - Jonathan Ingber - Страница 57

In September 2012, the NLRB and an administrative law judge (ALJ) issued two significant decisions concerning electronic postings. In the case of Costco,⁸ the full NLRB upheld Costco's policy that required employees to use appropriate business decorum in electronic communications, including posts. However, the following portion of the Costco policy was struck down:

Employees should be aware that statements posted electronically (such as online message boards or discussion groups) that damage the Company, defame any individual or damage any person's reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.

This provision was struck down on the basis that it could restrict permitted activities such as communications among employees that are critical of Costco's treatment of its employees.

Similar language in the EchoStar policy stated:

You may not make disparaging or defamatory comments about EchoStar, its employees, officers, directors, vendors, customers, partners, affiliates, or our, or their, products/services … Unless you are specifically authorized to do so, you may not: Participate in these activities with EchoStar resources and/or on Company time …

The ALJ in the EchoStar case held that EchoStar's policy was overly broad in two respects: first, preventing employees from making disparaging remarks about the company could intrude on employee rights to communicate about EchoStar's treatment of its employees (permitted action under the NLRA), and second, the prohibition of using social media on company time could cause employees to conclude they could not use social media on their own smartphones or devices before or after work hours, during rest breaks, or on lunch break.