Koch Social Media Policy May Be Unlawful; Employers Still Have Broad Leeway to Limit Employee Speech

The Koch Industries policy limiting employee speech on social media may be unlawful in light of recent decisions by the National Labor Relations Board, but employers still have broad leeway to impose their political views on workers and punish those who disagree.

On October 14, Mike Elk at In These Times reported on how Koch Industries sent a mailer to 45,000 employees of its Georgia-Pacific subsidiary urging them to vote for Mitt Romney and other Republicans, warning that if they don't, they "may suffer the consequences." At the same time, the Kochs were limiting employees' speech through a social media policy that threatened Georgia Pacific workers with disciplinary action or termination if their Facebook posts or tweets "reflect negatively" on the company's reputation or are "disparaging." The policy applies even to social media usage outside of working hours, and Elk reports that the policy has deterred some employees from speaking freely in their online posts.

Since the U.S. Supreme Court's 2010 decision in Citizens United v. FEC, the Kochs and other employers can now make partisan political communications directly to their employees. As a private employer the Kochs can even limit their employees' speech, since the First Amendment only protects against government infringement on free speech and expression. Employers are also afforded wide latitude to fire workers for their political activities.

Despite this, on September 7, 2012 the National Labor Relations Board (NLRB) issued a ruling that will likely deem the Kochs' social media policy unlawful.

Social Media Policy Likely Unlawful

"Currently, the legal protections for [the workplace speech of] private sector employees are slim, to say the least," said Paul Secunda, an associate professor at Marquette Law School who specializes in labor and employment law.

Private sector employees find no protection under the federal constitution and almost no protection under state laws for workplace speech. One of the few protections comes from the National Labor Relations Act, a federal law protecting worker rights enforced by the NLRB. Among other things, the Act prohibits employer practices that restrain workers from taking concerted action -- including communications -- related to the terms or conditions of their employment.

On September 7, the NLRB in Costco Wholesale Corp. and United Food and Commercial Workers Union, Local 371 found unlawful Costco's social media policy, which was similar to the Koch Industries' policy prohibiting postings that could damage the company's reputation, because it was overly broad and could prohibit protected employee activity under the Act.

The NLRB found that the Costco social media policy could deter employees from engaging in protected communications like web postings that are critical of how the company treats its employees.

"It is fairly clear that the Koch / Georgia Pacific social media code of conduct would fall under a similar analysis" as the Costco case, Secunda told the Center for Media and Democracy. "If an employee were to file a complaint, the [Koch / Georgia Pacific] policy clearly seems to be an over-broad social media code of conduct," he said, and thus unlawful.

The U.S. Supreme Court has held that communications protected under the Act include not only those directly related to the workplace, but also broader employment issues such as opposition to "Right to Work" laws and support for increasing the minimum wage. Thus, Secunda said, an employee's Facebook postings or tweets opposing Koch support for the American Legislative Exchange Council (ALEC) because the organization promotes anti-worker legislation would likely be protected under the Act -- and a social media policy limiting that sort of speech would be unlawful.

Kochs, Other Employers Retain Broad Latitude to Impose Views

Koch Industries' lawyers can likely rewrite the social media policy to pass muster under the National Labor Relations Act. And under the broad definition of corporate political speech in Citizens United, the Kochs and other employers can use their position of economic power to engage in various other forms of political intimidation or coercion.

This includes mailers like those sent by the Kochs or Westgate Resorts CEO David Siegel, as well as mandatory political meetings where workers must listen to their employer's political views under the threat of termination. It also includes events like the Romney campaign rally in Ohio last August, where miners employed by Murray Energy were required to attend without pay. Murray Energy CEO Bob Murray is a major Republican benefactor who has also reportedly compelled employees to contribute to his favored political candidates.

"Workplaces are suffused with an unequal power dynamic," Secunda says, and these forms of communications and requirements are often coercive.

Finding solutions to these issues that don't run afoul of the First Amendment is difficult, particularly under the broader corporate free speech rights established in Citizens United. Secunda has offered a partial solution: a national law similar to Oregon's Worker Freedom Act, which gives private employees the right to sue if they are terminated for refusing to attend mandatory political, anti-union, or religious meetings.

Talking Points in Favor of ALEC also Distributed

The Kochs are not just telling their employees who to vote for, they are also instructing them how to feel about ALEC. In addition to the list of the Kochs' preferred political candidates, the 67-page packet sent to Koch Industries employees included a letter from Charles Koch defending ALEC and criticizing the growing number of corporations that have cut ties with the organization for a "lack of courage."

A Koch Industries representative has long sat on ALEC's governing private enterprise board, its lobbyists are members of several ALEC task forces, and tens of thousands of Koch Industries funds have gone toward sponsoring ALEC meetings. The Koch brothers have also contributed hundreds of thousands to ALEC over the years through the charitable foundations they control.

Charles Koch's letter applauds the courage of himself and his brother David ("It is difficult to underestimate the value of courage, especially during challenging times like these, when we are being attacked by powerful politicians and irresponsible media"), while criticizing the corporations that have listened to the concerns of their customers and left ALEC. To date, 41 major American companies have dropped their ALEC memberships, including America's largest corporation, Wal-Mart. According to Koch, "several corporations couldn't throw in the towel fast enough."

The letter departs from ALEC's own talking point that CMD is trying to "create the false impression that companies are departing from ALEC."