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Table of Contents

Abstract                                                                                                                                     4

Chapter 1                                                                                                                                       5

Introduction                                                                                                                              5

Research Objectives                                                                                                               7

Methodology                                                                                                                             7

The research method                                                                                                        8

Why doctrinal research                                                                                                    9

Limitations of research methodology                                                                           10

Chapter 2                                                                                                                                     11

Literature review                                                                                                                    11

Lack of study done on employment contracts                                                            12

Lack of rights of expression for employees                                                                      12

NLRA Section 7                                                                                                                     13

Limitation of freedom of speech                                                                                         13

Social media                                                                                                                          14

Personal gripes                                                                                                                     14

Conclusion                                                                                                                             15

Chapter 3                                                                                                                                     15

First Amendment of the US Constitution                                                                          16

14th Amendment                                                                                                                   17

Protection of First Amendment for public employees                                                     19

Morris v. Crow                                                                                                                        20

Lane v. Frankse                                                                                                                     20

Corroborating cases                                                                                                             21

City of San Diego, California et al. v John Roe                                                               21

Pickering v. Bd. of Education                                                                                              22

Garcetti v Ceballos                                                                                                                23

Connick v. Myers, 461c U. S. 138, 142 (1983)                                                                 24

Conclusion                                                                                                                             25

Chapter 4                                                                                                                                     26

First Amendment for Private Employees                                                                           26

Civil Rights Act                                                                                                                      27

Introduction to National Labor Relations Act                                                                   27

Concerted activities of employees                                                                                     28

Chilling effect                                                                                                                        30

Social media                                                                                                                          32

Right to discuss wages for private  companies                                                                34

Investigations                                                                                                                         36

Personal representation of group concerns                                                                     37

Purely personal concerns                                                                                                   39

Personal gripes                                                                                                                     40

Losing NLRA protection                                                                                                       41

Conclusion                                                                                                                             43

Which law should prevails?                                                                                                44

Conclusion                                                                                                                             45

Chapter 5                                                                                                                                     45

Findings                                                                                                                                  45

Discussion                                                                                                                             46

Conclusion                                                                                                                             48

Bibliography                                                                                                                           48

Abstract

We are all entitled to freedom of expression goes the old adage in USA- whether we are on the job or not. The recent cases involving Google and other big tech companies discharging employees for merely expressing their own opinions has caused kerfuffle in the employee- employer relationship. Neither the First Amendment of US Constitution nor the NLRA Act protected the discharged employees for voicing their own opinions.

The problem is whether or not the First Amendment protects employees from retaliatory actions which are motivated by their exercising of freedom of speech.  If First Amendment protection is not forthcoming for private sector employees, what legislation on federal level afford protections to employees.

I opted to analyze the rights which are afforded to public sector and private sector employees by employing the doctrinal research method. Firstly,  I concentrated on the First Amendment and pertaining cases, which had the potential to offer incisive insight into the applicability of the First Amendment. Secondly, I considered on the NLRA Act and its implications on the freedom of expression among private employees.

The results of this doctrinal research suggest that First Amendment is only applicable to public sector employees, and is forthcoming on a number of requirements, further limiting its protection to public employees. The results regarding NLRA suggest that Section 7  of NLRA affords key protections. Nonetheless, for NLRA protection to be forthcoming, it has to be other concerted activity or individual activity representing group concern. To summarize, freedom of speech remains limited, if not non-existent in workplaces-whether private or public.

Chapter 1

Introduction

US legal system is a patchwork of federal, state laws, which gives rise to a  number of conflicts of laws concerning a number of issues. Since US legal system is a common law one,  these laws can either be codified and un-codified. Nonetheless, the most important body of rules and laws are codified in the US Constitution. Given the levels of various legislation and case law, there sometimes occur a conflict with the US Constitution itself.  When in conflict, the Consitituon is deemed to prevail over any laws, whether contractual or state.

One such conflicts of laws occur in employment settings. Whether or not the employers have the right to restrain employees from exercising their rights under the US Constitution have long been fraught with complications and ambiguity.  For instance, for a employer to request an employee to sign a non-disclosure agreement to be employed has become quite prevalent, notwithstanding how the 1st amendment of US Constitution ensures the freedom of of expression, religion and assembly.

Recent cases involving freedom of expression while employed give testament to how the levels of laws in place to protect employees freedom of expression.

Donald Trump pressurized the NBA to terminate the contracts of its players (i.e player) for taking a knee to express their disapproval of the social injustice. Doing so falls within the protection of the 1st amendment.  This case culminated in a nationwide debate about the constitutional rights of employees while employed or on the job. Moreover,  Google fired its employee, James Damore,  following his anti-diversity memo suggesting that women are less capable to do coding.    Most assumed that James Damore’s right to freedom of expression, as provided for under the 1st Amendment was infringed.   These cases testify how the right of freedom of expression is less than clear in the employee-employer relationships.

The legal research aims to bring clarity to such dynamics, and thus is considered imperative to determine the boundaries of many levels of laws applicable to employee-employer relationship. To effectively bring such clarity, the research aims to determine the rights of both employees and employers,  and whether constitutional rights prevail over employment agreement or state laws? Or vice versa?  Moreover, to examine the rights afforded to employees under federal, state, and contractual laws, and determine which one prevails over the another when in conflict. Moreover, the dissertation aims to determine whether under contractual law, employers can lawfully restrict their employees freedom of expression and assembly. If so, what such authority is predicated upon.

Research Objectives

 

  • Firstly, this legal research aims to determine the rights regarding freedom of expression to public and private employees, and determine the legal precedent and legislation which afford such rights to employees in the workplace.
  • Secondly, this legal research aims to analyze the case precedent relating to the employee’s freedom of speech rights in the workplace to determine how the employment law has come to be shaped.

Methodology

McConville and Wing (2007)[1] have compartmentalized legal research into two doctrinal and non-doctrinal types. The merits and demerits of both doctrinal and non-doctrinal research methods have been analyzed, and the doctrinal research method was selected. Doctrinal research can best be defined as research conducted to determine the applicable law in a particular area and falls within the category of qualitative method.  To examine the rights that exist for employees in workplace and determine whether constitutional, contractual, employment should prevail  in terms of employee’s right to freedom of speech and freedom of expression, a doctrinal research  method will be employed. Doctrinal research method, otherwise known as theoretical approach, entails the extensive analysis of the current legislation, case precedent and legal legislature. Such thorough  legal analysis,  the research aims to gain insight into how state, federal, and constitutional rights coalesce when it comes to freedom of expression in employment settings[2]. Moreover, doctrinal research can also make reference to journal articles and other material to either confirm or challenge the results gained from the legislation and case precedent. The data collated through systematic review of case precedent is then applied to the area of research, which is employee-employer relationship.

The research method

Firstly, data will be collected from the so-called primary sources- case law, the Constitution, legislations, state and federal. By analyzing such materials, the researcher gets to derive incisive analysis of the patchwork of laws and rules pertaining to the  fundamental rights’ of employees and whether they can restrained by employers. Secondly,  secondary sources such as journal articles, books will be consulted.  By consulting secondary sources, the researchers aims to analyze the credibility the raw hypothesis formulated by the primary sources.

Why doctrinal research

Non-doctrinal, black letter methodology, reform-oriented research , and doctrinal research methods have been juxtaposed in terms of their viability in enabling the researcher to answer the research questions and fulfill the research objectives.  Considering how conducting doctrinal research method is conducive to ascertaining key information as to which law and how it is applied to  particular set of issues.

Doctrinal research method was chosen as the methodology for this particular research because it enables the researchers to collate and analyze a large body of  legislation and case  law to determine how they are applied to one particular,  which is employee-employer relationship in this research.

Firstly, the doctrinal research method enables the researchers to synthesize the current legal framework (i.e. state and federal legislations and case precedent) to answer the research questions and achieve the research objectives. Moreover,  doctrinal research is considered to be the foundation for any successful legal research, since undertaking a doctrinal research enables the researcher to derive insight into the law itself.

As elucidated by Kissam (1988)[3], there are six rationales behind legal research. This particular research falls within the second reason as provide by Kissam (1998) which is to ‘to fuse the disparate elements of cases and statutes together into coherent or useful legal standards or general rules’.Following a careful juxtaposition of these reasons for a legal research, it became apparent that the researcher chose the doctrinal research methodology which is also referred to as the black letter methodology.

Secondly, black letter methodology is the only research methodology which is viable enough to produce exhaustive commentary on the legal doctrine. Doctrinal research method can also be qualified as black letter methodology.  Black letter methodology has gained wide traction in the legal research community.   Unlike other socio-legal research, doctrinal research method is not concerned with the socio-legal effect of the law and the extent to which it is effective.

Socio-legal research method has also gained prevalence in the legal research community.

Socio-legal research is noted for  encompassing both quantitative and quantitative methods, for how it can help researcher gain insight into the effect of the law on the society as a whole.

Limitations of research methodology

Like other research methods, doctrinal research (i.e. black letter) methodology also has a number of limitations.  These limitations and their relationship to the outcome of this research project will be delineated below.

Firstly,  as discussed above, doctrinal and black letter methodology concentrate on the letter of the law. Thus,  the doctrinal research method is considered to be untethered from the reality of how the law is applied to the real life.  This limitation of doctrinal research methodology seems warranted, since doctrinal research focuses on the legislation and case precedent to analyze how the law is applied.

Secondly, doctrinal research method is routinely criticized how it lacks to formulate insight into the effect of the law researched on society[4]. Such limitation of the doctrinal method seems somehow unassailable, and accepted. Salzberger (2007) suggests that  doctrinal research, notwithstanding its popular is largely impotent when it comes to the external influence of the law itself on those who are affected by the law[5].  Nonetheless, since this research projects aims to analyze the rights of employees as provided by the US Constitution, federal and state legal framework , it  is believed that the effects of such limitation is mitigated in this context, if not non-existent.

Chapter 2

Literature review

There is voluminous legal research conducted into the freedom of expression rights of employees.  Nonetheless, most of the work concentrate on the interrelationship between the rights conferred upon the public sectors workers. This dissertation, on the other hand aims to zero in on the freedom of expression rights of the public and private sector employees and juxtapose them. Section 7 of NLRA is applicable to all employees- whether public or private with a number of exceptions.

Lack of study done on employment contracts

Unlike English law, where the extent to which contractual law can be utilized to restrict  a person’s freedom of expression has been exhaustively, the issue still in US law remains far from researched  M.P. Furmston (1966)[6] notes that the legality of issue of whether someone had the authority to silence others and thus restrict their freedom of expression under the 1st Amendment has yet to be explored in US legal system. Staughton Lynd (1977)[7] also notes the conflict between two fundamental principles underpins of the American law system- one’s right to freedom of expression and the right of the property owner (private or public) to manage his enterprise as he thinks best.  This proposition seems warranted considering the case law.

Lack of rights of expression for employees

Helen Norton (2016)[8], conducting his empirical research into the limits of expression in the workplace, found that there was very limited uses of First Amendment of in terms of freedom of expression in the workplace. The same findings were proposed by  Jessica R. Vartanian (2012)[9] who cites how the applicability  of First Amendment is very limited. Charlotte Garden (2016)[10] also considers the deregulatory side of the First Amendment and concludes that its protection does not extend to private employees, while it extends to public employees in a number cases. The studies considered for the lack of rights of expression for employee by different authors imply that First Amendment protection omits to apply to private sector employees and that even when applied, their protection is limited.

NLRA Section 7

Regarding the Section of NLRA Section, Washington University Law Review (1973)[11], suggest the ambiguity associated with the so-called concerted activities, which are protected under Section 7.  The same findings were presented by Charles J. Morris (1989)[12], whose seminal article  confirms that determining whether an activity is the one that can be classified as protected concerted activity is onerous and far from emphatic. Findings of  Robert Gorman and Matthew W. Finkin (1981)[13] suggest that individual activities can as well be classified as protected concerted activity notwithstanding the popular belief that Section 7 of the NLRA[14] is applicable strictly to activities involving concerted activities, or initiated by groups. The legal articles considered for the application of Section 7 of NLRA propose comparable findings, and how there is clear ambiguity as to Section 7 of NLRA, and why the concerted activity provision is not encompassing of other employee activities.

Limitation of freedom of speech

Mary E. Becker (1996)[15]  contends that freedom of expression and speech is limited in workplace, whether it is public or private and suggests that Title VII of Civil Rights Act is not related to freedom of speech, since it envision to safeguard employees from discrimination based on their  sex, race, color, national origin, and religion.  Garfield (1998)[16] suggests the increase  in the use of non-confidentiality agreement and other provisions in contracts barring employees from disclosing or discussing job related matters, and contends that the current legal framework in place omits to provide the requisite protection to such individuals. Garfield[17], while attaching great importance to the issue, suggesting contracts of silence or non-confidentiality agreement to be found unenforceable. He ventures to suggest that contracts of silence or employee-employer contracts to be regulated in a more transparent way.  Garfield cites the doctrine of freedom of contract as the basis for the dearth of legal scholarship into how freedom of expression, assembly and protest can be restrained by private contracts.

Social media

Social media as platform has gained traction lately with employees using the social media platforms like Facebook to give vent to their complaints about their employers. There seems to be little academic research conducted into this specific element of freedom of speech as suggested by Rick Levy (2014)[18].    K Carlson (2015)[19] notes that NLRA protections can be forthcoming for private employees, since First Amendment did not concern private sector employees, and suggest that the NLRB has come to extend the applicability of Section 7 to individual activities involving posting on social media.

Personal gripes

Personal gripes, or activities motivated by purely personal concerns are usually not protected under the Section 7 of NLRA, suggested by Katherine Scott (2006)[20]. Michael R. Galey  (2017)[21] suggest that personal gripes and concerns which are purely personal do not enjoy Section 7 protection, and employer discharging employees for personal gripes are considered to not have violated the Section 8 of the NLRA[22].  There remains limited study on the implications of Section NLRA to personal gripes or concerns. Nonetheless, the studies suggest comparable results, with a number of conflicting findings.

Conclusion

Overall, there is voluminous research conducted into the freedom of expressions rights of private and public sector employees. Nevertheless, studies concentrate on either public or private sector employees, with no comparison of both. The limitations of employees freedom of speech in the workplace remain in place, as suggested by the literature review. Moreover, the use of social media by employees is one of the areas which yet to be explored by legal research.

Chapter 3

Chapter 3 concentrates on the First and Fourteenth Amendments of US Constitution, and case law pertaining to these constitutional amendments. The case precedent and the legislation will then be analysed with research objectives in mind.

First Amendment of the US Constitution

The most relevant amendment of US Constitution regarding the freedom of speech and expression is the First Amendment[23]. Below, the applicability of the First Amendment to public sector and private sector employees will be researched based on the doctrinal research method  to derive analysis as to the freedom of expression rights provided by the US Constitution.

The First Amendment of the US Constitution[24] states that

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The analysis above suggests that First Amendment is largely applicable to federal government and federal employees. The protections in the US Bill of Rights[25], including the First Amendment,  have not always been applicable to States. Till 1920s, the Supreme Court held that the Bill of Rights[26] was intended to bind the federal government, not the States. The seminal case of Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)[27] established that the protections including the First Amendment did not extend to State governments, unless expressly stated. The Supreme Court held that the just compensation for takings of private lands for public use  protection (codified in Fifth Amendment of US Constitution[28]) was a restriction on States but on the federal government. The ruling also emphasized that the protections in the Constitution including the First Amendment  was not a restriction on States following the Barron v Baltimore case[29] and that States were empowered to enact and enforce statutes restricting the protections in their respective States and that the Federal Government lacked the authority to intervene and restrict such practices. The case precedent set in Barron v Baltimore was corroborated in United States v. Cruikshank, 92 U.S. 542 (1875).  In United States v. Cruikshank, 92 U.S. 542 (1875)[30], the Supreme Court ruled that only the federal government were bound by the restrictions in the Bill of Rights, citing how the USA is a dualistic nation.

14th Amendment

Fourteenth Amendment to the US Constitution[31] engendered perennial debate prior to being incorporated into the US Constitution.  The Fourteenth Amendment contained a number of key sections.

The Section 1 of the Fourteenth Amendment provides that

‘No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’

When analyzed, the Due Process Clause within the Fourteenth Amendment[32] have long been essential in ensuring that States are under duty to incorporate the US Bill of Rights[33].  The Due Process Clause plays an important role in safeguarding ‘ arbitrary sentences of death, imprisonment or confiscation of property’.The Due Process  prohibits States from depriving “any person of life, liberty, or property, without due process of law.” The Due Process Clause had been utilized by the Courts to ensure that the Bill of Rights were incorporated into State legislations.

One of the first such cases was Gitlow v. New York, 268 U.S. 652[34]. The narrow application of the First Amendment protection of US Constitution was extended following a landmark decision in Gitlow v. New York, 268 U.S. 652. The Supreme Court held that the Fourteenth Amendment had extended the limitation on freedom of speech  on federal government to individual states, extending the scope and application of the First Amendment to public employees employed at the State level. The US Supreme Court relied on  “due process clause” of the Fourteenth Amendment[35] to rule in favor, citing ‘For present purposes we may and do assume that” the rights of freedom of speech and freedom of the press were “among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the states’.

The cases following the Gitlow v. New York, 268[36], and adjudicated by the Supreme Court further the applicability of the First Amendment to public employees employed at the State level. In the case of De Jonge v. Oregon, 299 U.S. 353 (1937)[37], the US Supreme Court held that the freedom of assembly as codified in the First Amendment was applicable by the virtue of the Fourteenth Amendment. Dirk De Jonge made a speech about the conditions in the prisons in the county at meeting called by the Communist Party. During a raid to the meeting, the Portland police, Dirk De Jonge is accused of and charged with  State’s criminal syndicalism statute. The Supreme Court held that Dirk De Jonge was protected under the freedom of assembly as provided in the First Amendment.

Protection of First Amendment for public employees

The doctrinal research conducted into the cases precedent and legislation regarding the employee’s rights under the First Amendment.[38] The First Amendment is ordinarily applicable to public employees provided that they meet the criteria created by the case precedent.

Morris v. Crow

The case of Morris v. Crow[39], decided by  Eleventh Court of Appeals,  had established that a public employee’s testimony to a subpoena was not a protected speech under the First Amendment, depriving the freedom of speech rights afforded to public employees when giving a testimony. The ruling was predicated upon the  judgment that when rendering a testimony, a public employee is doing so in compliance with compulsory process.

Lane v. Frankse

The ruling established in Morris v. Crow was abrogated and supplanted with that of Lane v. Franks[40]. In the Lane v Franks, Edward Lane,  the Director of the Community Intensive Training for Youth (“CITY”) program at Central Alabama Community College (“CACC”), is terminated for giving a testimony regarding a State Representative, Suzanne Schmitz. Consequently, Edward Lane is terminated and his alleges that the termination was relation for his exercising freedom of expression under the First Amendment.

The Supreme Court rules in favor of Edward Lane, abrogating the ruling established in the case of Morris v Crow[41]. Justice Sonia Sotomayor opined that since Lane’s testimony was rendered during a trial into the misuse of public funds, he was not render testimony as a part of his obligations as to his employment with CACC. Thus, he was testifying as a private citizen on a public matter and   was entitled to First Amendment protection.

Public employees do not forfeit their constitutional rights including the First Amendment just because they are employed by the federal or State government.  This was corroborated in the case of Keyishian v. Board of Regents, 385 U.S. 589 (1967)[42], where the US Supreme Court held that State laws could not prescribe public employees from being a party to the Communist Party of USA and these laws were incompatible with the First Amendment. The case largely abrogated the ruling in Adler v. Board of Education[43], in which a teacher,  Irving Adler’s employment was terminated because of his connection to the Communist Party of USA and such firing was found to be lawfully warranted.

City of San Diego, California et al. v John Roe

In the case of CITY OF SAN DIEGO, CALIFORNIA et al.  v. JOHN ROE[44] involved John Roe, a San Diego police officer and the City of San Diego Police Department. John Roe’s employment with San Diego Police Officer was terminated following John Roe selling videos of him in a police uniform and masturbating. He files a claim against the San Diego Police Department on grounds that his First Amendment right was violated. While the District Court  acknowledged that John Roe was acting outside of his capacity as a public employee, and thus a private citizen.  But, the District Court maintained that selling obscene videos on eBay could not qualify as a matter of public concern, which is a key requirement for establishing the First Amendment protection for public employees as seen in Connick v. Myers, 461 U.S. 138 (1983)[45].

The Supreme Court maintained the ruling, and decided that the termination of  John Roe’s employment did not amount to a violation of First Amendment. The case is seminal for a number of potent reasons and set a precedent for the future cases.  Firstly, the Supreme Court maintained that the public employees had a First Amendment right to speak on matters of public concerns, and that selling a video eBay did could not be classified as a matter of public concern. Secondly, the Supreme Court ruled that ‘ a governmental employer may impose certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public’.  The case of CITY OF SAN DIEGO, CALIFORNIA et is therefore tends to be seen as the public employer going overboard with restraining the First Amendment of public employees. Overall, the above analyzed case precedent suggest that the First Amendment protection of freedom of expression and assembly is applicable to for statements made as a private citizen on a public matter by public employees.

Pickering v. Bd. of Education

On October 8, 1964, the Board of Education of Township High School District 205 in Will County, Illinois, terminates  teacher, Marvin Pickering, following  his withering criticism of the Board in a local newspaper, Lockport Herald. The case made its way to Supreme Court, which ruled in favor of Marvin Pickering. Justice Thurgood Marshall opined that  Marvin Pickering had First Amendment protection and such protection could not be forfeited considering the ‘best interests’ of the school district.  The case of Pickering v. Bd. of Education provided substantial freedom of speech rights to public employees.  The case established the test to gauge whether or not a public employee’s statements are on a matter of public concern. As much as  the case of Pickering v. Bd of Education[46] ushered in the wide applicability of First Amendment to public employees, such applicability was rendered narrower following Supreme Court’s decision in Garcetti v Ceballos[47]. The case established the balancing act case to find the balance between the the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees’.

Garcetti v Ceballos

The case involved Gill Garcetti, a calendar deputy, and Richard Cabellos, a district attorney and thus a public employee. Richard Cabellos contacts Cill Carcetti to inform him that there were major inaccuracies in the affidavit to justify a search warrant. Following his calls for the dismissal of the case, Richard Cabellos, was subject to a set of retaliatory actions by his department such as transferring to another department and being denied the promotion since he had made statement challenging the legitimacy of warrants. The Supreme Court held in a  in a 5-4 decision,  that since his statements were made as to his capacity as a public employee rather than a private citizen, his statements did not warrant a First Amendment protection. The case established that public employees could avail themselves of  First Amendment protection when speaking as a private citizen, as opposed to a public employees. Therefore, statements made public employees as to their employment does not warrant a First Amendment protection.

Connick v. Myers, 461c U. S. 138, 142 (1983)

Connick v. Myers, 461c U. S. 138, 142 (1983)[48] is another landmark case regarding public employee’s rights under the First Amendment of US Constitution. The case involved Sheila Myers, an assistant district attorney (ADA), whose employment is terminated by her District Attorney, Harry Connick Sr.. Harry Connick terminates her employment following Sheila Myer’s distribution of questionnaires among employees requesting information as to the management practices of District Attorney, Harry Connick Sr. The Supreme Court ruled that the matters contained in the questionnaire were personal, and were not on public matters. The case also established a test for determining whether statements were made on concerns of public matter or not.

Another landmark case of Rankin v. McPherson, 483 U.S. 378 (1987)[49] involved  deputy constable, McPerson’s employment has been terminated on grounds of her statement supporting the assassination attempt of the Ronald Regan. The Supreme Court has ruled that McPerson’s statements regarding Ronald Regan was covered under the protection of First Amendment, and that her termination was not lawful. The Supreme Court rules that the fact that McPerson was a government employee with a little public interaction and policy-making capacities, her statement were covered under the First Amendment protection on grounds that he was rendering the statement as a private citizen on a public matter, and thus was entitled to First Amendment protection.

Conclusion

The above case analysis and First Amendment and Fourteenth Amendment suggest that the applicability of the First Amendment has been extended over the time.

The applicability of the First Amendment to individual States was extended with landmark decisions and Fourteenth Amendment. Prior to the ruling in Gitlow v. New York, 268 U.S. 652., the limitation was on the federal government to protect freedom of speech.   Following the Fourteenth Amendment and the cases predicated upon it, the Bill of Rights protections were extended to States. Moreover, the above analysis suggests that public employees on both federal and State level are protected by the freedom of speech protection. Nevertheless, the First Amendment protection  for public employees is not automatically forthcoming, and public employees can avail themselves of First Amendment rights when speaking as a private citizen, as illustrated in the cases of Garcetti v. Ceballos, 547 U.S. 410 (2006)[50].   The applicability of the First  Amendment for public employees was inflicted threat by the case of City of San Diego, California et al., which ruled that the governmental employees were empowered to make restraints on freedom of expression. The cases of Connick v. Myers, 461c U. S. 138, 142 (1983)[51] suggests that there is a delicate balance between an individual’s freedom of expression and the interests of the State to run its operations efficiently. Nonetheless, the First Amendment protection of freedom of expression, and assembly remains inapplicable to private employees.

Chapter 4

First Amendment for Private Employees

Unlike public employees who have First Amendment protection in the workplace with few exceptions, employees in the private sector do not have First Amendment protection[52]. Virtually most  private sector employer are empowered to discharge an employee for a number of reasons, including retaliation against freedom of expression in the workplace[53].  The lack of freedom of speech protection for private employees have been an incentive to employers to discharge employees for unfavorable statements made in the workplace.

In the case of Schumann v. Dianon Sys., Inc[54]. the Connecticut Supreme Court held that private employees First Amendment freedom of expression protection when making statements about the matters pertaining to their jobs during the course of their employment, underscoring the lack of freedom of speech protection afforded to private sector employees.

Civil Rights Act

The Civil Rights Act[55]  is considered to be the result of the Civil Rights Movement. Title VII contains a key provisions protecting employees, whether public or private.

Title VII of the Civil Rights Act of 1964 makes it illegal for employers to discriminate employees based on their race, religion, sex, national origin or color.  The applicability of Title VII is that it is applicable to employers having more than 15 employees, and seeks to protect both employees and job applicants.  The statutory interpretation of Title VII of the suggests that it does not raise issues regarding the First Amendment or freedom of expression, which seem to be in line with what has been suggested by Mary E. Becker (1996)[56].

Introduction to National Labor Relations Act

National Labor Relations Act (“NLRA”)[57] was enacted in 1935, and the Section 7 of the NLRA Act is one of the key statutory protections in place to ensure that private employees’ right to freedom of expression in not severely restricted by their private sector employers.  The NLRB, on the other hand, is an independent US government agency which administers the NLRA Act, and adjudicates cases pertaining to employees rights as codified in the NLRA Act. Introduction to Section 7. Section 7 of NLRA affords limited freedom of expression to the employees whether they are unionized or not. As the above results emphasize, the private sector employees can engage in the so-called protected, concerted activities, which can include employee’s right to express themselves regarding the payment, hours, and working conditions and terms. The US Supreme Court opined the rights codified in the Section 7 of the NLRA- constitutional in the case of NLRB v. Jones & Laughlin Steel Co., 301 U.S. 1, 33 (1937)[58], underlining the importance of these rights as fundamental.

Section 8[59] makes it illegal for employees to take retaliatory actions against employees just because they were engaged in protected concerted activities. Section 8 provides that  ;discharge, constructively discharge, suspend, layoff, fail to recall from layoff, demote, discipline, or take any other adverse action against employees because of their protected, concerted activities’.[60]

Concerted activities of employees

Pursuant to Section 7 of NLRA Act, the employees are empowered to ‘engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection’. Therefore, the Section 7 protection is applicable to employee activities which the NLRB recognizes as concerted activities. Certain activities can be classified as concerted activities, and include wages, hours, terms and conditions of employment.   The NLRB cases testify to how the Board has a tendency to underscore how activities have to be either for mutual aid or protection. Otherwise, the NLRA protection for activities of expressing themselves is not protected.

The section 7 of the NLRA Act emphasized the need of the action to be for collective bargaining or other mutual aid  or protection. Some landmark cases have come to shape how the NLRB defined what activities can qualify as concerted activities for the purposes of the Section 7.  For the Section 7 to be forthcoming for an activity of the  the employee, it has to be in the mutual aid or protection of other workers. This has been in the case of  Meyers Indus., Inc. (Meyers I), 268 N.L.R.B. 493, 497 (1984)[61],  where the Board the ‘concerted activities’ as activities which  to promote group worker interests regarding the terms and conditions of employment. When the activities of the employees fall within the remit of the category of concerted activities. Meyers II established that the activities of  individual employees who  “seek to initiate or to induce or to prepare for group action’ can be covered under Section 7. Nonetheless, such emphasis does not imply that it is not protected as a concerted activity under NLRA.

Chilling effect

The rules of companies can also impose certain restrictions on the exercise of employee Section 7 rights.  This usually happens when the companies publish or maintain certain rules containing the language which directly violate the provisions stipulated in Section 7. This kind of prohibition gives rise to a chilling effect which was articulated in the wordings of   Administrative Law Judge Clifford Anderson in his decision in the case of EchoStar[62]. The case is of a crucial importance in drawing a distinction line between the unfair labor practices and companies’ publication of rules which are deemed to be permissible. In the case of EchoStar, the allegations were made against the rules maintained by the company and its six provisions impacting the social media policy; the challenged provisions contained the wordings prohibiting any defamatory or disparaging comments about the company and its employees. Furthermore, the company requires that without prior authorization it is prohibited to make publications or even engage in public communications regarding EchoStar.  Judge Clifford Anderson famously stated that some of the rules deployed by EchoStar creates a chilling effect, however, the interpretation of the chilling effect should be devoid of subjective measures. Therefore, Judge Clifford Anderson emphasized the importance of considering what would be a reasonable perception of an employee in such a circumstance- would he consider that their rights under Section 7 might suffer reduction as a result of the rules maintained by the company.  Having established the general framework for the chilling effect, the Judge went on to explain the legality of the provisions adopted by EchoStar[63].  First, the Judge concludes that the rules prohibiting any disparaging or defamatory comments plainly intrudes the provisions of section 7 and therefore should be revised. However,  the Judge stated that the company handbook which contains prohibitions of social media use on company resources did not present any intrusion on the section 7 rights.       Karl Knauz Motors[64], Inc case covers all the main bases where the company rules regarding the publications of the employee were reckoned to be contrary to section 7 rights and the court ordered the revision. Knauz case was the first case concerning the Facebook firing where Robert Becker’s termination from the workplace was unlawful based on the provisions of Section 7 although his Facebook pictures tarnished the reputation of Karl Knauz Motors, Inc. The Board majority concluded the reputation of the company can not take precedence over the basic rights of employees  stipulated in the Section 7. The examples of the cases placing much emphasis on the rights stipulated in Section 7 abound. For instance, the rights of employees to discuss their wages, work conditions with each other( Jones & Carter case)[65]  and the right to support their colleagues in the social media was bolstered and prioritized by a number of cases which have been providing the anchor of protection against the unfair work practices.

Social media

Employees giving vent to their feelings as to their job and employers have become prevalent during the last decade.  These cases fall within the adjudication of the NLRB

The doctrinal research has analyzed the case law and the relevant legislation to identify the laws which seek to protect freedom of expression of the private sector employees.

Using profane language to describe a private employer on social media has somehow come to be  a protected concerted activity and was found not to be so ‘opprobrious enough for the employee to lose NLRA protection’ . NLRB v. Pier Sixty, LLC, No. 15-1841 (2d Cir. 2017)[66], Hernan Perez, a server for Pier Sixty, a catering company, used profane language to describe her manager, and consequently discharged from her job with Pier Sixty. NLRB ruled in favor of Hernan Perez, judging that Perez’s use of those words in his Facebook post would did not suffice to him to lose the protection under the Act. In  Plaza Auto Center, Inc., 360 NLRB No. 117 (2014)[67], the employer  was found to have violated National Labor Relations Act for discharging an employee following his profanity-laden outburst, which included blasphemy and personal attacks.  The Plaza Auto Center Inc argued that the employee’s action was so opprobrious that he had lost the NLRA protection. NLRB, using the Atlantic Steel four-factor test, ruled in favor of the employee, and maintained that he had not lost NLRA protection. Three D, LLC (Triple Play), 361NLRB No. 31 (2014)[68] is another case which can be utilized to highlight how employees expressing themselves on social media platform such as Facebook is construed as a protected concerted activity.  The case involved the non-unionized employer, Triple Play Sports Bar and Grille, and its employees, who complain about their employer’s tax withholding policies in a post, which gets liked by another fellow coworker. The NLRB held that commenting and liking posts critical of the employer amounted to a protected concerted activity, and discharging of these employees by the employer, Triple Play Sports Bar and Grill, was unlawful. The case is a seminal one because it extended the Section 7 to those employees who either like or comment on posts critical of their employers on social media and undoubtedly broadened the employee’s right to protest work conditions on social media. The

The applicability the Section 7 protection to all social media posts critical of the employers  is far from guaranteed. In the case of JT’s Porch Saloon & Eatery Ltd., NLRB Div. of Adv. No. 13-CA-46689 (July 7, 2011)[69], the bartender posted on Facebook complaining about an employer policy which did not require the waitress to share tips with the bartender. Once seeing the posts, his employer discharges his . NLRB found that complaining about amounted to just personal gripe since his post was not commented on or like by his fellow coworkers.  NLRB decision was predicated upon the fact that his post was not intended to mutually help or aid other coworkers.   Wal-Mart, NLRB Div. of Adv. No. 17-CA-25030 (July 19, 2011[70]) case involved a Walmart employee posting expletive-rants on Facebook, for which he was put on one-day suspension, which prevented him from being eligible for future promotions.  Notwithstanding how most of Facebook friends were also his coworkers, the NLRB decided in favor of the employer, citing that the employee’s posts amounted to mere own personal and individual gripes, and was intended to induce collective action. Therefore, by retaliating against the employee by placing him in a one-day suspension, did not violate the Section 8 (1) (a) of the NLRA Act[71].  A comparable decisions was reached in the case of Martin House, NLRB Div. of Adv. No. 34-CA-12950 (July 19, 2011)[72], where a mental health specialist posted a post disparaging the patients and the mental health facility itself. The General Counsel held that the employee’s posts were not related to either the terms or conditions of her work, and the did not induce collective action.

Overall, the discharge of an employee for the social media postings is lawful under the provisions of the NLRB.  However, an employee is not prohibited to post social media postings providing that (a) the employee is merely describing his complaints (b) the employee did not target the particular audience in mind when he made the post (c) the employee did not intend influence his/her coworkers in the wordings of the post (d) and the post involves casual the discussion about the terms and the conditions of the employment. In Karl Knauz Motors Inc. (Sept. 28, 2012)[73], the car dealership company had in place policies which required its employees to be over courteous and which was found to have been  contravention of Section 8 (1) (a).

Right to discuss wages for private  companies

NLRA Act protects the employees’ right to concerted activity.  The concerned activity protections encompasses employee’s right to collectively and effectively discuss remuneration, and by the virtue of Section of 8  1 (a),  any employer policies which restrict wage discussion is considered unlawful. The discussion of wage among private companies often come to be restricted or restrained by their private sector employees.  The cases analyzed for this part suggest the predilection of the NLRB to systematically uphold the Section 7.   In the case of Texas Instruments v. International Union of Electrical, Radio and Machine Workers, AFL-CIO[74], Texas Instruments employees engaged in disseminating leaflets asking about employment compensation. Brookshire Grocery v. Mark Moise[75]  case further corroborated the ruling in Texas Instruments, where an employee was discharged for copying wage information and sharing it with other employees.. Brookshire Grocery Company (Brookshire) enacted a rule prohibiting employees from discussing wages. NLRB rules in favor of Mark Moise, and upholds that wage discussion is one of the protected activities. In  Ambriola, Co. v. Unnamed Charging Party[76].  Ambriola Co also had policies in place forbidding wage discussion, and the NLRB found that such policies were clear violations of NLRA.  Nonetheless, the remit of the NLRA is not applicable to federal contractors. To mitigate the problem, and ensure that employee’s freedom of expression was not restricted as to the discussion of compensation and pay, an Executive Order  — Non-Retaliation for Disclosure of Compensation Information[77] was signed by President Obama. The Non-Retaliation for Disclosure of Compensation Information makes it illegal for federal contractors to retrain their contractors from discussing wages and as such. Overall, the employee’s right to discuss compensation seems more or less guaranteed under the NLRA. Discussion of wage as a freedom of speech in workplace is considered a concerted activity under the NLRA.

Investigations

Employers tend to have policies in place which requires employees from disclosing information relating to investigations being carried out in the companies, and it is usually included in the employer agreement contract. The Section 7 protection also extends to the discussions of  investigations in the workplace. The cases analyzed suggest that the Section 7 protection is applicable to employees when there is a workplace policy prohibiting the discussion of investigations. The case Banner Health System v. NLRB, No. 15-1245 (D.C. Cir. 2017)[78], established that the employer’s prohibiting the discussion of internal investigations was illegal. In the case,  the NLRB ruled that workplace policies barring employees from discussing investigations were a clear violation of NLRA and encroached upon the employee’s Section 7 right to engage in protected concerted activity. The Boeing Co., case no. 19-CA-089374 (July 26, 2013)[79], Boeing Co had policies in place which precluded employees from discussing ongoing. The NLRB board held that such provisions in contracts with employees was a violation of the Section 7 protection.   Overall, it is apparent that workplace policies or contract provisions requiring the employees  to refrain from discussing ongoing company investigations is not compatible with Section 7, hence, clear violation of Section 8 1 (a). Therefore, by the virtue of being in violation of Section 8 1 (a), provisions prohibiting employees from discussing investigations is not valid, and thus not enforceable.

Personal representation of group concerns

Regardless of how an activities has to be for the purpose of collective bargaining or another mutual aid or protection, individual activities of employees can also be classified as concerted activity and protection afforded in some exceptional case, and hence their freedom of expression under NLRA Section 7 be protected.  Personal representation of group concerns were also found to be a protected activity under NLRA. For instance, when an individual employee attempts to represent the concerns of the whole group, such speech is protected under NLRA. This protection for individual activities taken by individual employee had been established in the case of Scooba Mfg. Co. v. NLRB, 694 F.2d 82, 84 (5th Cir. 1982)[80] and is applicable to such activities when the individual employee ‘must be engaging in the activity with the object of initiating, inducing or preparing for group action’. All 12 District Courts have come to accept that individual actions can be protected under NLRA. That individual employee, however, must be engaging in the activity with the object of initiating, inducing or preparing for group action. It is essential that the activity have some relation to group action in the interest of the employees (NLRB v. McCauley, 657 F.2d 685, 688 (5th Cir.1981)[81].

For an individual’s activity of expressing themselves to be, there no need to be interest of their fellow coworkers. This is referred to as the Interboro doctrine, and was established in the case of Interboro Contractors, 157 N.L.R.B. at 1298. The case provides that provides that an individual’s submission  of a right  grounded in collective bargaining agreement is considered a concerted activity in the absence of interests from fellow coworkers. The reasonableness of the Interboro doctrine was established in the case of NLRB v. City Disposal Systems[82] by the US Supreme Court and hence upheld by the Supreme Court. Irrespective of the number of employees making statements regarding group concerns was held in Meyers Indus., 268 NLRB 493, 496 (1983)[83]In Diagnostic Center Hospital Corp 228 NLRB 1215 (1971)[84], the NLRB found that an individual might be found to be engaged in a concerted activity if he or she is individually giving voice to the concerns once complained among the employees privately, suggesting how individual actions undertaken by individual employees can be protected under the NLRA Act. Furthermore, NLRA also protects the employee’s individual activity if it has the potential to be beneficial to his colleagues, and that his colleagues need not to be aware of such activity. Moreover, it is also accepted that he does not need to have the intention to induce group concern.   The standard was established in the case of Alleluia Cushion Co., 221 N.L.R.B. 999 (1975)[85], in which an employee complained to the California Occupational Safety and Health Administration to regarding working conditions in  plant producing carpets, Alleluia Cushion Co. The NLRB held that the individual concern of the employee was protected and hence concerted since his actions would be beneficial for other coworkers.

Overall, the cases of Alleluia Cushion Co., 221 N.L.R.B. 999 (1975), Diagnostic Center Hospital Co suggest that the mere fact that the  individual activities taken by individual  can be qualified as concerted activity and be protected under the Section 7 of the NLRA.

Purely personal concerns

Chapter Three suggests that Section 8 of NLRA Act protects the freedom of expression of employees when such expression deals with either compensation, hours or employment terms or conditions. Nonetheless,  and activities taken by a single individual undertaken for own personal benefit which do not resemble group concern are not protected concerted  activities for the purposes of Section 7 of NLRA  Act..  Therefore, when an employee is discharged, demoted or subjected to retaliations for expressing themselves for purely personal reasons, such discharge or retaliation is not considered unlawful in compliance with Section 8 (1) (a). The case of Ryder Tanks corroborated how NLRA and NLRB do not confer protection to concerned expressed which re purely personal  In Ryder Tank Lines, Inc[86]., an employee was discharged because of complaining about a shortage in his pay for a trip. Even though the matter relates to one of the protected concerted activities under Section 7- discussion of wages, the NLRB held that such action was purely personal, hence, unprotected under NLRA Section 7.  The same decision was reached in the case of Tabernacle Community Hospital & Health Center on  grounds that   the employee’s action was purely personal and does not represent mutual aid or protection.  The cases Richardson Paint Co. v. NLRB, 574 F.2d 1195, 1207 (5th Cir.1978)[87], established how an activity undertaken by individual employee for his or her purely personal concerns are not protected under the NLRA Act. The case NLRB v. Buddies Supermarkets, Inc., 481 F.2d 714 (5th Cir. 1973)[88] clearly illustrated that for purely personal concerns the protection of NLRA is not forthcoming. Buddies Supermarkets Inc discharges an employee following his persistent dissatisfaction with the new contract negotiated by him and other coworkers. Fifth District Court decided in favor of Buddies Supermarkets Inc, citing that Smith’s actions amounted a mere individual action and was purely personal. As such, the employee’s action was not concerted and  not protected under the NLRA. Meyers I case established that no Section 7 would not be forthcoming if the employee activity is ‘engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself’.

Personal gripes

Secondly,  NLRA is not applicable to the so-called personal gripes, where the action of the individuals is grounded in a personal animosity or gripe towards the employer. Del E. Webb Realty & Mgmt Co., 216 N.L.R.B. 593 (1975)[89], where the discharge of an  employee following his actions was found lawful since the employee’s action was motivated by a personal animosity, substantiating how the Section 7 of NLRA is not applicable to activities of employees including expressing themselves when such activities are motivated by a  personal gripe. The case of NLRB v. Buddies Supermarkets, Inc., 481 F.2d 714, 717-19 (5th Cir. 1973), where it was further consolidate that personal gripes are not protected concerted activity. The cross-analysis of the case precedent suggests that individual gripe which are specifically wages can be protected under Section 7 of the NLRA since such individual complains have to be classified as inherently concerted.  The NLRB decided the employee’s discussion of wages was not designed to  to initiate or support group action.

Losing NLRA protection

The research suggest that NLRA protection for certain employee activities can in fact be lost, and NLRB provides three cases where the Section 7 protection can be lost, suggesting NLRA protection is not always forthcoming for employees even when engaged in protected activity.

Firstly,  the case precedent analyzed suggests that NRLA protection is not forthcoming for employees if their actions are ‘so opprobrious and egregious as to render him or her ‘unfit for further service’ as established in the NLRB case of Atlantic Steel Co., 245 NLRB 814 (1979)[90].  The case involved an employee accosting a supervisor and complaining about overtime distribution, for which the employee is discharged.    The case established the so-called Atlantic Steel four-factor test which courts employ to determine whether or not employee’s actions are opprobrious enough for him or her to lose NLRA protection.The  four-factor case formulated in  Atlantic Steel Co.,  is as follows:

 (1) the place of the discussion;

(2) the subject matter of the discussion;

(3) the nature of the employee’s outburst; and

(4) whether the outburst was, in any way, provoked by the employer’s unfair labor practices.

Secondly, employee’s concerted activity might not be qualified as protected under if such activities violate their duty of loyalty by disseminating disparaging comments about the employers.  This exception has been devised by the US Supreme Court in the case of NLRB v. Local Union No. 1229, International Brotherhood of Electrical Workers (“Jefferson Standard”)[91], in which the Supreme Court held that the duties of loyalty owed to employers was not minimized because of the Section 7 protection. The case involved employees printing and disseminating leaflets launching vituperative attack as to the quality of the TV programs produced and distributed by their employer, and when duty of loyalty comes into conflict with the Section 7 protection, the duty of loyalty to employer prevails.  The exception was further illustrate in the case of Am. Golf Corp., 330 N.L.R.B. 1238, 1241 (2000)[92] highlights how disparaging the employer’s reputation by disseminating flyers critical of the employer’s products. Thirdly, employee conduct which can be classified as mere griping does not fall within the protection of the NLRA protection.  In Mushroom Transportation Co. v. NLRB[93], it was held that if the activity largely composed of just talk with no intention of action. The case involved a driver who frequently talked to other employees regarding company and employment conditions. However, the Third Circuit held that the employee’s acts just constituted mere griping without  the intend to “initiate or promote any concerted action” which could help improve the company’s employment conditions.

Conclusion

Overall,  unlike public employees who have restricted right to First Amendment in the workplace, the private sector employees do not enjoy the Constitutional right to freedom of expression. The NLRA and Civil Rights Act can be utilized by private sector employees to protect their freedom of speech in the workplace. The case precedents and the NLRA Act and Civil Rights Act considered above suggest that private sector employers are conferred upon a a number protections for concerted activities outlined in the Section 7 of the NLRA Act. The basis for a claim for breach of Section 8 (1) (a) is that the action the employee must either be motivated by collective marketing, or mutual aid or protection.  Nevertheless, the NLRA protection is forthcoming if the activities involves activities including freedom of speech if they do not fall within the ‘concerted activity’ category prescribed in the NLRA.  Nonetheless, the above research highlights how individual actions taken by employees, whether to complain about matters, can be considered a concerted activity for the purposes of protecting their freedom of expression.  The doctrinal research suggests that the use of social media to vent dissatisfaction by employees can also be considered protected.

Which law should prevails?

Article VI of the US Constitution provides the so-called Supremacy Clause[94], which provides that federal law is the ‘supreme law of the land’, and is the basis for the preemption. Under the doctrine of preemption, federal law always preempts the state law. The fact that federal always preempts employment laws (including freedom of expression in the workplace), was illustrated in the case of  Altria Group v. Good, 555 U.S. 70 (2008)[95]. The US Supreme Court ruled that the with the virtue of the preemption, federal law always preempted state law.

On the other hand, while the States confer upon more rights than the federal law, then such State laws are considered valid, and enforceable within the respective States.

For instance, the federal law of Fair Labor Standard Act[96],  which established the minimum wage at $7.25. Some states, including California, have state laws mandating minimum wages over that that of federal requirement, and as such, these laws are not preempted by federal law. On the other hand, when the minimum wage mandated by the states are lower than $7.25, then federal law preempt such laws.

Conclusion

Overall, as per the Article VII, federal laws supersede state laws, and the preemption clause is also applicable to state laws including labor laws. Nonetheless, federal law does not preempt state laws when state laws provide more protections to their citizens.

Chapter 5

Findings

The findings suggest and the freedom of expression rights conferred under the Section 7 of NLRA invites some ambiguity as to what types of employee activities it protects. The cases analyzed give a testament to the credibility of the statements provided in Washington University Law Review (1973). The results also testify to how the private sector employees do not enjoy First Amendment protection which are forthcoming to public sector employees with a few exceptions. The cases analyzed as to how individual activities and their likelihood of being protected under NLRA suggest that irrespective of the concerted activity criteria set out in the Section 7, some individual expressions of an employee can also be protected under NLRA, corroborating the findings of Robert Gorman and Matthew W. Finkin (2013)[97]. Freedom of expression social media by employees, which was also considered in this research, have come to be protected under the NLRA. Nevertheless, their guarantee of protection is still predicated upon whether the activity involves concerted activity under Section 7 of the. Overall, while the First Amendment is applicable to public employees, not the private sector employees. Nonetheless, private sector employ can refer to Section 7 of NLRA Act for protection for specific employee activities. By imposing the protected concerted activity requirement, the NLRA’s protection of private employee’s  is less than guaranteed. As cases such as Ryder Tank Lines, Inc[98]. suggest, even when an employee’s activity of expressing themselves cannot be protected under the NLRA, rendering its efficacy in ensuring that employees have freedom of expression in the workplace.  Moreover, the applicability of the NLRA is rather limited, which gives too much leeway to employers to discharge, demote or retaliate against employees just because their expressing themselves are not protected under the NLRA Act.

Discussion

The above research suggests that the rights the concept of First Amendment in the workplace does not extend to private sector employees, corroborating the findings  of Helen Norton (2016), which discuss how the  First Amendment largely omits to provide the protection in terms of freedom of expressions. Moreover, First Amendment is not forthcoming for private sector employees.

The findings suggest that individual activities of employees can also qualify as a concerted activity and hence be protected under the Section 7 of NLRA, which seems to be in line with what has been suggested by  Robert Gorman and Matthew W. Finkin (1981)[99]. Social media uses of employees to express themselves have also come to be protected, as the cases suggest. The protection of Section 7 extends to such uses of social media as suggested by Rick Levy (2014)[100].  Furthermore, the results suggest that discussion of wage constitutes a protected concerted activity under Section 7, and this has been illustrated in a number of cases. Furthermore, the result also corroborate that discussion investigations in workplace settings are also protected.

 Nonetheless, purely personal concerns and personal gripes are not considered  as protected concerted activity.   Finally, the results suggest that NLRA protection for concerted activity can be lost in a number of cases, including opprobrious behavior, mere griping  and when an employee violates his duty of loyalty to their employers by disparaging their employer’s reputation.. Even though Section 7 protection is not always forthcoming, it can be somehow effective in ensuring that   group concerns expressed by employees, substantiating the findings of Helen Norton (2016)[101].

Conclusion

 

To answer the research questions, and achieve the objectives for this research and determine the rights of private and public employees, the doctrinal research method has been used. The research entailed collating pertinent cases and legislation to be analyzed and utilized as support to help answer the the research questions. The results of this doctrinal research has been summarized in findings and they suggest that freedom of expression is limited in both private and public sector employees. Chapter Three considered the cases pertaining to First Amendment, while Chapter Four considered the Civil Rights Act and the NLRA and cases pertaining to it.

Bibliography

 

 

Legislation

  • US Constitution
  • The Fair Labor Standards Act of 1938 29 U.S.C. § 203
  • Executive Order — Non-Retaliation for Disclosure of Compensation Information
  • National Labor Relations Act(“NLRA”)
  • The Civil Rights Act
  • Bill of Rights

Journals

  • Robert A. Gorman and Matthew W. Finkin, Labor Law Analysis and Advocacy , (Juris Publishing, Inc.  2013)
  • Helen Norton, Truth and Lies in the Workplace: Employer Speech and the First Amendment, (2016) Minnesota Law Review
  • Rick Levy, Social Media and the Free Speech Right of Public Employees, (2014) University of Kansas School of Law
  • Mary E. Becker, How Free Is Speech at Work? (1996) University of Chicago Law School Chicago Unbound
  • The Yale Law Journal, Free Speech, the Private Employee, and State Constitutions (1982), The Yale Law Journal 91, No. 3
  • Cynthia L. Estlund, Free Speech and Due Process in the Workplace (1995) Indiana Law Journal
  • Michael R. Galey, Status Updates, Tweets, and Gripes, Oh My! The NLRA in the Era of Social Media (2017) Bloomberg Law Reports
  • Katherine M Scott, WHEN IS EMPLOYEE BLOGGING PROTECTED BY SECTION 7 OF THE NLRA? (2006) DUKE LAW & TECHNOLOGY REVIEW
  • Kathleen Carlson, Social Media and the Workplace: How I Learned to Stop Worrying and Love Privacy Settings and the NLRB (2015) Florida Law Review
  • Rick Levy, Social Media and the Free Speech Right of Public Employees, (2014) University of Kansas School of Law
  • Alan E. Garfield, Promises of Silence: Contract Law and Freedom of Speech (1998) Cornell Law Review
  • Robert A. Gorman and Matthew W. Finkin, Labor Law Analysis and Advocacy ,  (Juris Publishing, Inc.  2013)
  • Charles Morris, NLRB Protection in the nonunion workplace: A glimpse at a general theory of Section 7 conduct (1989) University of Pennsylvania Law Review
  • The Struggle To Define Section 7 Concerted Activity: A Literal Definition Emerges’ (1987) Wash. & Lee L. Rev. 1277
  • Charlotte Garden, The Deregulatory First Amendment at Work, (2016) Harvard Civil Rights-Civil Liberties Law Review
  • Jessica R. Vartanian, SPEAKING OF WORKPLACE HARASSMENT: A FIRST AMENDMENT PUSH TOWARD A STATUSBLIND STATUTE REGULATING “WORKPLACE BULLYING (2012) Maine Law Review
  • Helen Norton, Truth and Lies in the Workplace: Employer Speech and the First Amendment, (2016) Minnesota Law Review
  • Staughton Lynd, Employee Speech in the Private and Public Workplace: Two Doctrines or One (1977) Berkeley Journal of Employment & Labor Law, Volume 1 Issue 4
  • P. Furmston, The Analysis of Illegal Contracts, (1966) 16 U. ToRoNTo LJ. 267, 293
  • Salzberger, E. M, The economic analysis of law-the dominant methodology for legal research (2007) Hanifa Law Review.
  • Shazia Qureshi, Research Methodology in Law and Its Application to Women’s Human Rights Law (2015) Journal of Political Studies, Vol. 22, Issue – 2
  • Mike McConville and Wing Hong Chui, Research Methods for Law (Edinburgh University Press, 2007)
  • Philip C. Kissam (1998), ‘Disturbing Images: Literature in a Jurisprudence Course’, Legal Studies Forum

[1] Mike McConville and Wing Hong Chui, Research Methods for Law (Edinburgh University Press, 2007)

[2] Mike McConville and Wing Hong Chui, Research Methods for Law (Edinburgh University Press, 2007)

[3]

[4] Shazia Qureshi, Research Methodology in Law and Its Application to Women’s Human Rights Law (2015) Journal of Political Studies, Vol. 22, Issue – 2

[5] Salzberger, E. M, The economic analysis of law-the dominant methodology for legal research (2007) Hanifa Law Review.

[6] M.P. Furmston, The Analysis of Illegal Contracts, (1966) 16 U. ToRoNTo LJ. 267, 293

[7] Staughton Lynd, Employee Speech in the Private and Public Workplace: Two Doctrines or One (1977) Berkeley Journal of Employment & Labor Law, Volume 1 Issue 4

[8] Helen Norton, Truth and Lies in the Workplace: Employer Speech and the First Amendment, (2016) Minnesota Law Review

[9]Jessica R. Vartanian, SPEAKING OF WORKPLACE HARASSMENT: A FIRST AMENDMENT PUSH TOWARD A STATUSBLIND STATUTE REGULATING “WORKPLACE BULLYING (2012) Maine Law Review

[10] Charlotte Garden, The Deregulatory First Amendment at Work, (2016) Harvard Civil Rights-Civil Liberties Law Review

[11] The Struggle To Define Section 7 Concerted Activity: A Literal Definition Emerges’ (1987) Wash. & Lee L. Rev. 1277

[12] Charles Morris, NLRB Protection in the nonunion workplace: A glimpse at a general theory of Section 7 conduct (1989) University of Pennsylvania Law Review

[13] Robert A. Gorman and Matthew W. Finkin, Labor Law Analysis and Advocacy ,  (Juris Publishing, Inc.  2013)

[14] NLRA, Section 7

[15] Mary E. Becker, How Free Is Speech at Work? (1996) University of Chicago Law School Chicago Unbound

[16] Alan E. Garfield, Promises of Silence: Contract Law and Freedom of Speech (1998) Cornell Law Review

[17] ibid.

[18] Rick Levy, Social Media and the Free Speech Right of Public Employees,  (2014) University of Kansas School of Law

[19] Kathleen Carlson, Social Media and the Workplace: How I Learned to Stop Worrying and Love Privacy Settings and the NLRB (2015) Florida Law Review

[20] Katherine M Scott, WHEN IS EMPLOYEE BLOGGING PROTECTED BY SECTION 7 OF THE NLRA? (2006) DUKE LAW & TECHNOLOGY REVIEW

[21] Michael R. Galey, Status Updates, Tweets, and Gripes, Oh My! The NLRA in the Era of Social Media (2017) Bloomberg Law Reports

[22] NLRA,Section 8

[23] US Constitution, First Amendment

[24] US Constitution, First Amendment

[25] Bill of Rights

[26] Bill of Rights

[27] Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)

[28] US Constitution, Fifth Amendment

[29] Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)

[30] United States v. Cruikshank, 92 U.S. 542 (1875)

[31] US Constitution, First Amendment

[32] US Constitution, Fourteenth Amendment

[33] Bill of Rights

[34] Gitlow v. New York, 268 U.S. 652

[35] US Constitution, Fourteenth Amendment

[36] Gitlow v. New York, 268 U.S. 652

[37] De Jonge v. Oregon, 299 U.S. 353 (1937)

[38] US Constitution, First Amendment

[39] Morris v. Crow, 825 F. Supp. 295 (M.D. Fla. 1993)

[40] Lane v. Franks, 573 U.S. ___ (2014)

[41] Morris v. Crow, 825 F. Supp. 295 (M.D. Fla. 1993)

[42] Keyishian v. Board of Regents, 385 U.S. 589 (1967)

[43] Adler v. Board of Education (1952)

[44] City of San Diego, California et al. v John Roe 543 U.S. 77 125 S. Ct. 521 2004 U.S

[45] Connick v. Myers, 461 U.S. 138 (1983)

[46] Pickering v. Board of Education, 391 U.S. 563

[47] Garcetti v. Ceballos, 547 U.S. 410

[48] Connick v. Myers, 461c U. S. 138, 142 (1983)

[49] Rankin v. McPherson, 483 U.S. 378 (1987)

[50] Garcetti v. Ceballos, 547 U.S. 410 (2006)

[51] Connick v. Myers, 461c U. S. 138, 142 (1983)

[52] The Yale Law Journal, Free Speech, the Private Employee, and State Constitutions (1982), The Yale Law Journal Vol. 91, No. 3

[53] Cynthia L. Estlund, Free Speech and Due Process in the Workplace (1995) Indiana Law Journal

[54] Schumann v Dianon Systems, Inc.No. SC 18655 (CT S.Ct., May. 1, 2012)

[55] The Civil Rights Act

[56] Mary E. Becker, How Free Is Speech at Work? (1996) University of Chicago Law School Chicago Unbound

[57] National Labor Relations Act, Section 7

[58] NLRB v. Jones & Laughlin Steel Co., 301 U.S. 1, 33 (1937)

[59] NLRA, Section 8

[60] NLRA, Section 8

[61] Meyers Indus., Inc. (Meyers I), 268 N.L.R.B. 493, 497 (1984),

[62]  EchoStar Technologies (NLRB Case No. 27-CA-066726)

[63] ibid.

[64] Karl Knauz BMW, Knauz Auto Group. Case Number: 13-CA-046452

[65] National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937)

[66] NLRB v. Pier Sixty, LLC, No. 15-1841 (2d Cir. 2017)

[67] Plaza Auto Center, Inc., 360 NLRB No. 117 (2014)

[68] Three D, LLC (Triple Play), 361NLRB No. 31 (2014)

[69] JT’s Porch Saloon & Eatery Ltd., NRLB Div. of Adv. No. 13-CA-46689 (July 7, 2011)

[70] Wal-Mart, NLRB Div. of Adv. No. 17-CA-25030 (July 19, 2011)

[71] NLRA, Section 8 (1) (a)

[72] Martin House, NLRB Div. of Adv. No. 34-CA-12950 (July 19, 2011)

[73]  Karl Knauz Motors,. Inc., 358 NLRB No. 164 (Sept. 28,2012)

[74] Texas Instruments Incorporated v. National Labor Relations Board, 637 F.2d 822, 1st Cir. (1981)

[75]  Brookshire Grocery v. Mark Moise Co., 294 N.L.R.B.

[76] Ambriola, Co. v. Unnamed Charging Party 22-CA-061632

[77] Executive Order  — Non-Retaliation for Disclosure of Compensation Information

[78] Banner Health System v. NLRB, No. 15-1245 (D.C. Cir. 2017)

[79] The Boeing Co., case no. 19-CA-089374 (July 26, 2013)

[80] Scooba Mfg. Co. v. NLRB, 694 F.2d 82, 84 (5th Cir. 1982)

[81] NLRB v. McCauley, 657 F.2d 685, 688 (5th Cir.1981)

[82] NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984)

[83] Meyers Indus., 268 NLRB 493, 496 (1983)

[84] Diagnostic Center Hospital Corp 228 NLRB 1215 (1971)

[85] Alleluia Cushion Co., 221 N.L.R.B. 999 (1975)

[86] Ryder Tank Lines, Inc., 135 N.L.R.B. at 937

[87] Richardson Paint Co. v. NLRB, 574 F.2d 1195, 1207 (5th Cir.1978)

[88] NLRB v. Buddies Supermarkets, Inc., 481 F.2d 714 (5th Cir. 1973)

[89] Del E. Webb Realty & Mgmt Co., 216 N.L.R.B. 593 (1975)

[90]  NLRB case of Atlantic Steel Co., 245 NLRB 814 (1979)

[91] NLRB v. Local Union No. 1229, International Brotherhood of Electrical Workers

[92] Am. Golf Corp., 330 N.L.R.B. 1238, 1241 (2000)

[93] Mushroom Transportation Co. v. NLRB 330 F.2d 683 (3d Cir. 1964)

[94] US Constitution, Article VI- Supremacy Clause

[95]  Altria Group v. Good, 555 U.S. 70 (2008)

[96] The Fair Labor Standards Act of 1938 29 U.S.C. § 203

[97] Robert A. Gorman and Matthew W. Finkin, Labor Law Analysis and Advocacy ,  (Juris Publishing, Inc.  2013)

[98] Ryder Tank Lines, Inc., 135 N.L.R.B. at 937

[99] Robert A. Gorman and Matthew W. Finkin, Labor Law Analysis and Advocacy ,  (Juris Publishing, Inc.  2013)

[100] Rick Levy, Social Media and the Free Speech Right of Public Employees,  (2014) University of Kansas School of Law

[101] Helen Norton, Truth and Lies in the Workplace: Employer Speech and the First Amendment, (2016) Minnesota Law Review


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