Weingarten Rights: Safeguarding employee representation in workplace investigations

Understand Weingarten Rights: the right to have a representative during investigatory interviews as protected under the NLRA. Learn how these rights empower employees and safeguard their interests.

By Brad Nakase, Attorney

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Table of Contents

1. What are Weingarten Rights?

2. When is it appropriate for workers to ask for a union representative?

3. Which kinds of gatherings are exempt from the Weingarten rule?

4. Who could represent Weingarten employees in an employee capacity?

5. When an employee asks for legal representation, how should the company react?

6. What could a union representative ask questions about during a job interview?

7. What restrictions apply to union representation in job interviews?

8. In what circumstances do Weingarten rights apply?

9. Do evaluation conferences and job performance reviews justify Weingarten rights?

10. What about drugs and alcohol counseling sessions?

11. What qualifies as a “reasonable expectation” that discipline might result?

12. What happens if the employer starts questioning the employee about their behavior after claiming to have made a disciplinary decision?

13. Is the interview location important?

14. Does an employer have to inform an employee of their Weingarten rights before the meeting?

15. When and how can an employee ask for representation?

16. When an employee requests union representation, what does the employer need to do?

17. If it is unclear whether a meeting demands Weingarten rights, what should an employee do?

18. Is it possible for an employee to refuse to answer questions or even to leave a meeting if their employer insists on having it continue without a representative present?

19. Can the worker ask for a specific representative? Is it required to be a representative of the association?

20. If the employee requests a representative, does an employer have to give them release time?

21. Can an employee refuse to answer questions even if they have received all necessary Weingarten rights?

22. What are the duties, rights, and role of the representative at a Weingarten meeting?

23. Can a worker waive their Weingarten rights? How?

24. In the event that Weingarten Rights are violated, what recourse is available?

What are Weingarten Rights?

The right to ask for a lawyer during an investigation

According to Section 7 of the National Labor Relations Act (NLRA), employees are allowed to join, form, or help labor unions. They also have the right to collectively bargain with the help of a lawyer of their choice. It is also within their rights to participate in union activities.

Section 7 also guarantees employees the right to have their own legal counsel while being interviewed at a disciplinary meeting. This right stems from the Supreme Court case NLRB v. J. Weingarten, Inc. The Court ruled that Section 7 of the NLRA protects workers who decline to participate in interviews without their chosen lawyer present. According to the current law, only employees in unions have this right. But the NLRB General Counsel is requesting that the Board go back to its prior rule that all workers enjoy this right, regardless of whether they are unionized.

A Weingarten representative is an employee’s requested representative. This may be a business agent or officer, a union steward, or a fellow employee. A Weingarten representative is allowed to offer advice and provide assistance to workers in the course of investigatory meetings. Weingarten rights refer to an employee’s right to have their chosen representative present during such interviews.

It is a violation of the NLRA if an employer denies an employee’s request for representation and goes ahead with an investigatory meeting. It is also a violation if the employer retaliates against the employee for making the request. Based on the particular situation, the Board may demand that the company post a remedial notice, cease and desist, take back and remedy discipline, or require the employer to redo the interview with a representative present.

When is it appropriate for workers to ask for a union representative?

A worker’s right to request an advocate occurs during an investigatory interview. The Miranda protection given to an individual who is being questioned by law police is a helpful analogy. However, employers are not obligated to notify union members of their rights under Weingarten, in contrast to the right to counsel in a Miranda situation.

Any meeting could qualify as an “investigatory interview” if the following takes place:

An employee is being questioned by a supervisor, manager, or management representative.

The employee’s performance or work behavior is being investigated, and this includes questioning the employee. A management representative may ask an employee to defend, justify, or acknowledge misconduct or problems with work performance that could lead to disciplinary action or termination during an investigative interview.

The worker has a legitimate fear that the investigation may lead to their termination, reprimands, demotion, or other unfavorable changes to their employment status or working environment.

The worker asks to speak with a union representative.It is not mandatory for employers to notify workers of their right to representation, and other parties, such as union representatives, are not permitted to submit the request on the worker’s behalf.

The Board does not require an employee to specifically state that they require a “Weingarten” representation when requesting a representative. An employee does not have to make the same request more than once to designate their representative. Sometimes it’s unclear if a meeting is investigative in nature or if it could result in disciplinary action. In some situations, the National Labor Relations Board (NLRB) assesses whether an investigative purpose was served by the meeting’s behavior and the surrounding circumstances.

The Board will take into account the following factors:

The participants’ identities and statuses
The parties’ collective bargaining agreement and disciplinary procedures
The confrontational nature of the meeting
Any notices or warnings given beforehand
Any instances of similar misconduct resulting in employee discipline

Which kinds of gatherings are exempt from the Weingarten rule?

Any discussion between an employer and employee may activate the employee’s Weingarten rights if the aforementioned requirements are satisfied. But not every interview or interrogation by an employer meets those requirements. Employers, for instance, are not required to comply with an employee’s request for a representative in the following circumstances:

Meetings for instruction in which staff members receive guidance or criticism concerning job methods.These kinds of meetings usually don’t result in discipline.

Meetings when an employer explains personnel policies to a worker or workers.These sessions frequently result in neither discipline nor the need to interrogate staff members.

Meetings where the employee is advised beforehand that the interview will not result in disciplinary action or unfavorable employment action.

Meetings pertaining to previously rendered disciplinary decisions. A meeting with an employee to advise them of a decision regarding disciplinary action that has been made by the employer is not deemed investigative. Likewise, since any discipline the employee has faced has already taken place, any meeting that they call to talk about a disciplinary action they have received is not investigative in character.

Meetings where a worker is questioned in the course of looking into the performance or behavior of another worker. For instance, if an employee is questioned about what they saw and witnesses another employee engaging in misbehavior, they are not entitled to Weingarten representation.

But even in the above instances, a meeting’s character could evolve as it goes on. The Board will consider the above considerations when deciding whether to grant an employee’s request for representation. This protects the employee when a meeting that was scheduled for a different purpose has turned into an investigative interview.

Who could represent Weingarten employees in an employee capacity?

Employees have the option to select their own representative, who may be a union representative or another worker. As long as the decision does not unnecessarily impede the employer’s capacity to carry out its investigation, employers are obligated to comply with that request. Workers are not permitted to ask for a non-employee representative unless that person is a business agent or officer of their union. For instance, if a family member or private attorney is not associated with the employee’s union, the employee is not permitted to designate them as their Weingarten representative.

When an employee asks for legal representation, how should the company react?

During an investigatory interview, an employer may legitimately choose to follow one of three options when an employee seeks a representation:

The employer may agree to the request and postpone the interview until a representative is available.
The employer has two options: either it grants the request and ends the interview right away, or it gives the employee the option to decide whether to continue the interview without a representative or to end it.
The employer may be engaging in unfair labor practices if they reject the request and keep asking questions. Disciplining an employee for refusing to answer questions in the absence of their union representation is also an unfair labor practice.

What could a union representative ask questions about during a job interview?

Representatives from the union assist and observe during employee interviews. Employers must let union representatives know what will be covered in the interview and give them enough time to meet with the employee before starting to question them.

In the course of the interview, a union representative has the right to ask the employer to explain certain points, offer guidance to the employee on how to respond to questions (within reason), and follow up with the employer with more details. In addition, if an inquiry is bothersome, intimidating, or badgering, a union rep may object.

What restrictions apply to union representation in job interviews?

A union representative may not obstruct an employer’s lawful investigational efforts while representing an employee in an investigatory interview; instead, they must behave civilly. If a union representative acts in an unfriendly or disruptive manner at a meeting, the employer has the legal right to kick them out.

An employee cannot be told what to say by a union representative, nor can they be counseled to give misleading information.

In what circumstances do Weingarten rights apply?

Which Circumstances Prohibit the Application of Weingarten Rights?

A worker does not have the right to union representation if:

The discussion or meeting is only intended to communicate work instructions, training, or necessary corrections

The meeting’s sole intent is to inform the worker about a disciplinary decision that has already been made, with no information being sought from the worker

The employer has explicitly and explicitly promised the worker that there will be no discipline or negative consequences from the interview

The worker starts the discussion after the employer has made it apparent that the topic may result in disciplinary action.

Do evaluation conferences and job performance reviews justify Weingarten rights?

If an employee’s performance has been questioned and they have a legitimate fear that their job is in danger, then the answer is probably yes. Nonetheless, it is unlikely that classroom observations fall under this entitlement.

What about drugs and alcohol counseling sessions?

Absolutely, provided that the employer has a legitimate reason to believe that the issues being discussed could lead to suspension or termination and the employee is being asked for information.

What qualifies as a “reasonable expectation” that discipline might result?

The test is not subjective; it is objective. Stated differently, the examination does not involve the employee’s actual or personal beliefs about the potential of discipline. What counts is whether or whether the worker had a legitimate fear of facing discipline. The impartial facts pertaining to the inquiry are crucial. The employee has the right to assert their Weingarten rights if the employer threatens to reprimand them “based on what I learn.” But there are a lot of other reasons why there can be a “reasonable expectation” that discipline will take place. Has the employer issued any written or verbal warnings regarding the alleged behavior? Is the employer looking into particular misbehavior claims? Has the worker ever been investigated before? Has any other staff member faced disciplinary action for actions comparable to the ones under investigation at this meeting?

The employee does not have a right to union representation if the employer indicates that the meeting or investigation into the employee’s questions will not result in any disciplinary. Naturally, therefore, the employer cannot, no matter what it discovers, impose discipline. It is unreasonable to discipline someone after making such a guarantee.

What happens if the employer starts questioning the employee about their behavior after claiming to have made a disciplinary decision?

The cases are ambiguous regarding this circumstance. At any time throughout the discussion when the employer asks them for information, we advise employees to ask to be represented. The employer may be attempting to defend or modify its disciplinary decision by requesting this kind of material, which could result in Weingarten rights.

Is the interview location important?

No. The employee has the right to union representation whether they are being questioned in the superintendent’s office or in the corridor if there is a reasonable possibility that the questions will result in discipline.

Does an employer have to inform an employee of their Weingarten rights before the meeting?

No. Workers need to be aware of their rights and request union representation.

When and how can an employee ask for representation?

The employee should simply state that they would like a union representative to be present as soon as they learn, or have a reasonable suspicion, that the employer is requesting information that could lead to disciplinary action or that is meant to support a disciplinary decision.

The request is not required to be made in writing or to take any certain format. A simple inquiry like “Should I not have a representative here?” is sufficient to establish the employer’s Weingarten duties.

The request may be made by the staff member at any point prior to or during the meeting. (On the other hand, if the company immediately grants the employee’s Weingarten rights upon request, they may use any information acquired prior to the request being made.)

When an employee requests union representation, what does the employer need to do?

At that time, the employer is unable to continue with the interview. The meeting must either be adjourned until a later time when union representation is feasible, or it must be stopped until the representative shows up and has had an opportunity to speak with the employee in private. The employer may simply elect not to schedule an interview at all.

If it is unclear whether a meeting demands Weingarten rights, what should an employee do?

When in doubt, express your opinion. Requesting union representation has no negative consequences. A worker cannot be disciplined by their employer just for making a request. It should be acceptable for an employee to inquire about the possibility of disciplinary action following the meeting.

It would be reasonable for the employee to request legal assistance if the response was anything other than “no.”

WARNING: If it is later determined that a meeting does not meet Weingarten status, an employee may not be protected for declining to attend. Therefore, whenever an employee is summoned to a meeting with their employer, we advise them to speak with the representatives of their association for legal counsel regarding their rights.

Is it possible for an employee to refuse to answer questions or even to leave a meeting if their employer insists on having it continue without a representative present?

In theory, certainly. If an employee refuses to give up their Weingarten rights to representation, their employer cannot fire or reprimand them. Should the circumstance really be a Weingarten one, the worker might say nothing at all or even walk away and resume their regular responsibilities. Though they may be able to later reverse any penalty resulting from the illegal meeting, it is frequently wise for the employee to follow the employer’s instructions given the intricacy and unpredictability of the law. If not, the worker can face disciplinary action for disobedience.

Can the worker ask for a specific representative? Is it required to be a representative of the association?

The employee has the option to designate a preferred representative, who may be a fellow worker or a union official, provided that the selection does not significantly impede the employer’s capacity to carry out the inquiry. In real life, this typically implies that the employer has to make an effort to accommodate the worker’s request, even if it requires a slight delay in the meeting’s scheduled time. However, the worker cannot reasonably expect the employer to call off the meeting. It is only possible to assess the reasonableness of an employee’s or employer’s actions case-by-case.

If the employee requests a representative, does an employer have to give them release time?

Generally speaking, if a representative is “available,” the employee may designate them. The representative will be obliged to meet with the employee during their time off if the interview or meeting is planned far enough in advance for them to do so. Of course, under certain circumstances, release time may also be specified in the local collective bargaining agreement.

The employer must give the representative on the premises release time if off-duty consultation is not practicable. This is unless the employer can demonstrate an overwhelming managerial requirement that would prohibit it.

Can an employee refuse to answer questions even if they have received all necessary Weingarten rights?

No. Unless there are any criminal ramifications to the topic at hand. As long as their representational rights have been upheld, employees typically do not have the right to silence, and an association representative may not give instructions to an employee to do so.

Important Information: An employer in a public school is a branch of government covered by the Fifth Amendment of the United States Constitution. The employee has the right to stay silent if the employer raises issues that can expose them to criminal culpability. In these situations, having legal representation is crucial.

What are the duties, rights, and role of the representative at a Weingarten meeting?

Weingarten meetings are not considered “bargaining sessions,” but association representatives may request to be informed of the meeting’s topic.

Prior to the meeting, have a private consultation with the employee.
During the interview, speak out and take initiative, provided that it doesn’t impede or disturb the gathering.
Provide guidance and advice to the staff member.
At the conclusion of the interview, give the employer more details.
Observe the events and record them with notes.

Can a worker waive their Weingarten rights? How?

Indeed, they can. An employee’s rights will be deemed “waived” if they do not proactively request representation. However, as was already mentioned, there are no “magic words” in the request for representation.

If the employer asserts that the worker decided to proceed with the interview without legal counsel, the company is required to provide evidence showing the decision was made voluntarily, clearly, and conspicuously. The decision would not be considered “voluntary” if, for instance, the employer advised the employee, “Things will be worse for you if you insist on having the association present,” before the employee decided to go without a representative.

In the event that Weingarten Rights are violated, what recourse is available?

Under Chapter 150E, an employer is prohibited from engaging in any of the following practices: (1) refusing to provide full Weingarten rights to an employee seeking representation during an investigatory or disciplinary meeting; (2) disciplining an employee for asserting their rights; (3) threatening or coercing an employee who is exercising their rights; or (4) threatening or disciplining an association representative for supporting an employee in a Weingarten meeting.

If an employee or association representative exercises their Weingarten rights, the employer will be ordered by the state Department of Labor Relations to retract any threats of retaliation or disciplinary actions taken against them. Additionally, the commission may order the revocation of the discipline. This is if it determines that the information gathered at the unlawful meeting or the absence of an association representative had an impact on the final punishment imposed by the employer. Additionally, the employer will be required by the commission to post a notice of the infraction.

One could argue that any ultimate suspension or discharge arbitration should not include any information that was gathered during a meeting that violated Weingarten rights.

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