The Chicago Employment Law Blog

Koch Bros: Political Mailers and Restrictive Social Media Policy

David H. Koch and Charles G. Koch are known to be quite conservative. Their donations to the GOP and Tea Party and their personal opinions are well-known at this point. However, recent actions undertaken by the brothers have created a bit of controversy about the role of a boss's political opinions at the workplace and the ability of employees' to speak freely online, reports In These Times.

Earlier this month, the brothers sent out an election packet to all of their 45,000 employees containing information on "approved candidates" and editorials written by the two gentlemen. Most prominent of their recommendations, of course, were the pro-Romney and anti-Obama editorials. Many have reported that the mailer also warned of the "consequences" of voting for non-approved candidates.

That’s not the whole story. The mailer espoused a pro-Republican view, which is almost certainly allowable corporate and individual free speech (per Citizens United.) The mailer also contained the following statement: “We believe any decision about which candidates to support is — as always — yours and yours alone, based on the factors that are most important to you. Second, we do not support candidates based on their political affiliation.”

Had the brothers been forcing their employees to vote for Romney by threat of termination, that might have been a legal issue. Instead, the brothers expressed their opinion that voting for certain candidates would lead to higher gas prices, a worse economy, and larger national debt. The mere expression of the company’s owners’ political opinions is protected speech and most likely not illegal.

However, they might run into trouble with their social media policy. While the Koch brothers have unfettered free speech, their employees are not allowed to make remarks via social media that “reflect negatively” on Koch-owned Georgia Pacific. Before the vitriol is spilled from your lips in the name of free speech, note that Costco and EchoStar (the former parent company of Dish Network) had similar policies. However, it was only last month that Costco’s policy was scrapped by the NLRB. EchoStar’s policy was also scrapped by a New York court shortly thereafter. We could expect GP to revise their policy in due time in light of the recent decisions.

These decisions may also mean local employers need to take a second look at their own policies. As we mentioned last week, the NLRB is starting to clarify the extent to which an employer can restrict employees’ social media activity. Blanket policies, like those issued by Costco, Echostar, and Georgia Pacific may no longer be allowable, as employees are allowed to speak up about working conditions and pay. However, a prohibition on mocking the boss or company (GP’s “damaging the reputation” standard) is probably still allowable even under the newly clarified standards.

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