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연구자들이 자신의 연구와 전문성을 널리 알리고, 새로운 협력의 기회를 만들 수 있는 네트워킹 공간이에요.
초록· 키워드
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Can an employee assert his constitutional free speech rights against his employer in the private workplace? How should courts treat the employer interference with employee's free speech rights? Does the validity of constitutional rights extend to the private person's actions?
This Article examines these legal issues with special reference to the relevant theories and cases of the United States. In the United States, the rights guaranteed by the Constitution to individuals are protected only against interference by governmental entities. This is called "the doctrine of state action". Therefore, in virtually every litigation in which an individual argues that his constitutional rights have been violated, the court can grant relief only if it finds that there has been state action, i.e., some sort of participation by a governmental entity sufficient to make particular constitutional provision applicable. However, sometimes even a private individual's actions are found to be "state action", and thus subject to the Constitution.
The U.S. Supreme Court has used a number of theories to explain why particular private conduct is so closely linked to governmental conduct that it should be considered state action. The cases generally fall into two main doctrines: "public function doctrine" and "governmental involvement doctrine".
This state action doctrine also applies to the private-sector workplace. Therefore, a private employee cannot assert his constitutional free speech rights against his employer. In the United States, however, there are some legal bases for private employee speech protection. The most significant recent development in the law of wrongful discharge has been the public policy exception to the rule of at-will employment. In arguing for protection of private employee speech under the public policy exception, advocates and commentators have turned to the First Amendment ant its state counterparts as the requisite sources of public polici. This argument, however, has had little success in the courts.
The other legal bases for at-will employee speech protection includes the concerted activity provision of the National Labor Relations Act, the whistleblower laws, and the general statutory protection in Connecticut. Section 7 of the NLRA provides that workers have the right "to engage in . . . concerted activities for the purpose of . . . mutual aid or protection." Employers are prohibited from interfering with, restraining, or coercing employees who are exercising these rights. Despite its seemingly expansive language, however, Section 7 does not provide the kind of broad protection for private employee speech. On the other hand, the whistleblower laws are designed to protect from employer retaliation any employees who report illegal or harmful activity. Many states have a general whistleblower statute, and many federal employee protection statutes have their own built-in provisions prohibiting retaliation.
Lastly. Connecticut is the only state in the United States that has a general statute protecting employee speech in both the private and public sectors. The statute prohibits employers from disciplining or discharging an employee "on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or [the free speech clause] of the constitution of the state." The protections apply unless the speech in question "substantially or materially interferes with the employee's bona fide job performance or the working relationship between the employee and the employer." A successful plaintiff may recover compensatory damages. punitive damages. and attorney's fees. But it seems that the statute does not offer comprehensive speech protection to private employee in Connecticut.
In short a private employee cannot assert his constitutional free speech rights directly against his employer's disciplinary actions. unless there exists concrete statutory provisions that protect private employees' speech rights. The Korean courts should explicitly adopt the approach of the United States courts. It seems to be undesirable that the courts in Korea have taken some ambiguous attitudes toward the scope of validity of the constitutional rights.
This Article examines these legal issues with special reference to the relevant theories and cases of the United States. In the United States, the rights guaranteed by the Constitution to individuals are protected only against interference by governmental entities. This is called "the doctrine of state action". Therefore, in virtually every litigation in which an individual argues that his constitutional rights have been violated, the court can grant relief only if it finds that there has been state action, i.e., some sort of participation by a governmental entity sufficient to make particular constitutional provision applicable. However, sometimes even a private individual's actions are found to be "state action", and thus subject to the Constitution.
The U.S. Supreme Court has used a number of theories to explain why particular private conduct is so closely linked to governmental conduct that it should be considered state action. The cases generally fall into two main doctrines: "public function doctrine" and "governmental involvement doctrine".
This state action doctrine also applies to the private-sector workplace. Therefore, a private employee cannot assert his constitutional free speech rights against his employer. In the United States, however, there are some legal bases for private employee speech protection. The most significant recent development in the law of wrongful discharge has been the public policy exception to the rule of at-will employment. In arguing for protection of private employee speech under the public policy exception, advocates and commentators have turned to the First Amendment ant its state counterparts as the requisite sources of public polici. This argument, however, has had little success in the courts.
The other legal bases for at-will employee speech protection includes the concerted activity provision of the National Labor Relations Act, the whistleblower laws, and the general statutory protection in Connecticut. Section 7 of the NLRA provides that workers have the right "to engage in . . . concerted activities for the purpose of . . . mutual aid or protection." Employers are prohibited from interfering with, restraining, or coercing employees who are exercising these rights. Despite its seemingly expansive language, however, Section 7 does not provide the kind of broad protection for private employee speech. On the other hand, the whistleblower laws are designed to protect from employer retaliation any employees who report illegal or harmful activity. Many states have a general whistleblower statute, and many federal employee protection statutes have their own built-in provisions prohibiting retaliation.
Lastly. Connecticut is the only state in the United States that has a general statute protecting employee speech in both the private and public sectors. The statute prohibits employers from disciplining or discharging an employee "on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or [the free speech clause] of the constitution of the state." The protections apply unless the speech in question "substantially or materially interferes with the employee's bona fide job performance or the working relationship between the employee and the employer." A successful plaintiff may recover compensatory damages. punitive damages. and attorney's fees. But it seems that the statute does not offer comprehensive speech protection to private employee in Connecticut.
In short a private employee cannot assert his constitutional free speech rights directly against his employer's disciplinary actions. unless there exists concrete statutory provisions that protect private employees' speech rights. The Korean courts should explicitly adopt the approach of the United States courts. It seems to be undesirable that the courts in Korea have taken some ambiguous attitudes toward the scope of validity of the constitutional rights.
목차
Ⅰ. 머리말
Ⅱ. 기본권의 효력에 관한 일반이론
Ⅲ. 미국에서 기본권의 제3자효 문제에 관한 일반론 : 국가행위의 법리
Ⅳ. 미국에서 사기업 근로자의 언론자유 보호를 위해 거론되는 법적 논거들과 그 한계
Ⅴ. 맺는 말: 우리에게의 수용필요성
【Abstract】
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UCI(KEPA) : I410-ECN-0101-2009-362-015610357