By Brendan Fischer
Wednesday, 17 October 2012
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.