Until July 10, 2000 Weingarten rights only existed in unionized work forces. Now, the National Labor Relations Board has reversed its own 15-year-old precedent. Weingarten grows everywhere.
Under the Weingarten decision an employee who is undergoing an investigative interview that the employee reasonably believes might result in disciplinary action has the right to union representation if he asks for it. Significantly, an employer has no duty either to tell the employee he has a right to representation nor is the employer required to bring a union representative into the interview where the employee does make the request.
How does this apply in a non-union workforce? If the employee being interviewed requests that another employee be present, that request must be granted or the interview stopped or called off. And, under any circumstance, if the request is made the employee cannot be disciplined in any way for having made the request. Of course, these rules apply in the unionized work force but the “representative” in the interview must be a previously designated union representative.
Given these two choices, we recommend proceeding with the interview. If there is a valid reason for the interview, that reason remains. The interview is still the best way to develop the facts upon which a decision can be made. Give the employee a chance to tell his version of what happened.
We further recommend that you not try to “persuade” the employee who has made the request to give up his “Weingarten rights” and proceed to the interview alone. This approach, even if the employee agrees, is laden with risk.
What rights does the “representative” have in the interview? He can advise the employee who is the subject of the interview to refuse to answer any and all questions. He can ask the employer to explain the purpose of the interview. He can ask the employer to disclose what it already knows from the investigation. He can make answers to these questions conditions to “allowing” the employee to participate in the interview. Thus, a well-schooled “representative” can hinder the investigation with impunity. Neither he nor the subject of the interview can be disciplined or otherwise penalized for their interference.
Of course, there are many variables to this scenario. However, some training of supervisors and managers about the new scope of the Weingarten landscape should avoid most of the problems.
Berry Moorman regularly conducts on-site seminars designed to inform and train executives, supervisors and managers in all aspects of labor and employment law. If your company is interested in such a seminar, or have questions related to labor and employment issues, please feel free to contact Francis J. Newton at the Detroit office.