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Koch Industries Orders Workers Not To Discuss Kochs' Politics On Social Media

Decree could violate National Labor Relations Board ruling.

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 they 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 Board 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 Board 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.

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