“Employees should be aware that statements posted electronically (such as [to]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.”
Why? Employees have the right under the National Labor Relations Act to make concerted complaints regarding an employer’s treatment of employees. The board reasoned that the policy was so broad that employees reasonably could conclude that the policy prohibited making such complaints. But board law is nuanced, almost like the subtleties of medieval scholars asking how many angels can dance on the head of a pin (I say this with love, as a former NLRB field attorney).
The opinion states that the policy would be legal if it was included in a laundry list of prohibitions, such as “sabotage” or sexual or racial harassment. Why? Because the context of the rule in the laundry-list example would not lead a reasonable employee to conclude that it prohibited protected concerted discussion.
One other point: It is a violation of the NLRA to discipline or terminate an employee for violating an unlawful policy. Stay tuned.