In a 1975 case called NLRB v. J. Weingarten, the U.S. Supreme Court first set forth employees’ rights to representation during an employer interview. Over the past 43 years, these “Weingarten rights” have been refined by the National Labor Relations Board and the courts. Weingarten rights issues still arise and are still litigated. For instance, last year the D.C. Circuit Court of Appeals held that Weingarten rights did not apply when an employee was put on paid suspension pending an investigation (Bellagio v. National Labor Relations Board) or when an employee participated in a non-compulsory interview with a peer review committee (Midwest Division-MMC, LLC. v. National Labor Relations Board).
In order to clarify Weingarten rights and assist employers in avoiding litigation, this post answers questions commonly asked when an employer handles employee requests for representation during an employer interview.
Q. What is the general principle behind Weingarten rights?
An employee is entitled, upon request, to the presence of a union representative in any employer interview in which the employee reasonably fears that the interview may result in discipline.
Q. Do non-union employees have the right to representation?
Non-union employees do not have Weingarten rights.
Q. What triggers the right to representation?
Four conditions must be met before an employee’s Weingarten rights are triggered:
- A management representative must seek to question the employee.
- The questioning must be in connection with an investigation.
- The employee must reasonably believe that the interview may result in disciplinary action against the employee.
- The employee must request union representation.
Q. Must management advise employees of their Weingarten rights?
No. The employer need not ask about or advise employees of their Weingarten rights prior to the interview.
Q. Under what circumstances could the employee reasonably believe that the interview may result in disciplinary action?
Of course, a purely investigatory meeting held to inquire into suspected misconduct would qualify. On the other hand, if management has called a meeting simply to issue or inform the employee of discipline, the employee has no Weingarten rights. If the purpose of the interview is not clearly at either end of this spectrum, but there is any investigatory purpose or any potential for eliciting information that may result in employee discipline, then Weingarten rights likely apply and, to protect its investigation, an employer should honor them.
Q. Must the employee request specifically invoke the words “Weingarten” or “representative?”
No. For example, although a supervisor is not an eligible Weingarten representative, a request that the supervisor be present is likely sufficient to put the employer on notice of the desire for representation.
Once a valid request for representation has been made, and management reasonably should be aware of it, the request need not be repeated.
Q. Can someone make the request for representation on behalf of the employee?
No. It is the employee’s choice as to whether to have a union representative present in a Weingarten situation. The employee may forego this right.
CHOOSING THE REPRESENTATIVE
Q. Who can serve as a representative?
The employee must choose either a union representative or coworker. The employee does not have the right to have a supervisor present, but the employer may grant this request if it so chooses.
Q. Can the representative be a non-employee?
Yes, but only if the non-employee is an officer or business agent of the union. Employers have no obligation to grant a request that a non-employee with no standing with the union (e.g., a personal attorney) attend the meeting or represent the employee.
Q. Can the employee pick a representative of their choice?
Subject to the foregoing qualifications (i.e., the representative must be a union official or coworker), the employee generally can pick the representative.
Q. What if the employee’s chosen representative is unavailable?
When an employee requests a representative who is unavailable for reasons for which the employer is not responsible, the employer is not obligated to postpone the interview or suggest an alternative representative. The employee may request another representative. If he or she does so, the employer should grant the request if the representative is available.
An employer does not have to wait for days before the selected representative becomes available. However, waiting several minutes (or even an hour or two—e.g., if the representative is on lunch break) may be required, particularly if there is no immediate basis for urgency.
CONDUCTING THE INTERVIEW
Q. May the employer cancel the interview after the employee makes a request for representation?
An employer is free to cancel an interview after the request for representation is made. A Weingarten violation occurs only if the employer proceeds with the interview without accommodating the request or if the employer disciplines the employee because of the request.
The employer has three options when an employee makes a valid request for a Weingarten representative: (1) grant the request; (2) discontinue the interview; or (3) offer the employee the clear choice between continuing the interview with no representative or discontinuing the interview. On the balance, however, situations where the interviews are not held should be rare, because the presence of representation at an interview will only add credibility to the investigation.
Q. Does the employee have a right to a pre-interview consultation with the selected representative?
Yes. Management is obligated to inform the representative of the purpose of the interview and allow the representative to speak privately with the employee prior to the beginning of the interview. The employer need not permit the consultation to occur on company time as long as there is adequate non-working time prior to the interview.
Q. What role can the representative take during the interview?
The employer may not deny the representative the opportunity to speak, but the rights of the representative are limited:
- The representative cannot interfere with the employer’s effort to conduct a legitimate investigation.
- Although the representative may advise the employee on how to answer a question, the representative may not tell the employee what to say.
- The representative must remain civil and refrain from hostile or adversarial behavior.
- The representative does not have the authority to question managers or supervisors or determine areas of inquiry.
- The representative’s role is to advise the employee, not prove the employee’s innocence.
- The representative may not turn the interview into a formalized adversarial contest or persistently interrupt and object.
- The representative may, however, object to confusing or intimidating tactics, or advise the employee against answering questions that are reasonably perceived to be abusive, misleading, or badgering.
Q. Can the employer kick the representative out of the interview?
Yes, under certain circumstances. The representative must remain civil and refrain from hostile or adversarial behavior. If a representative acts in a disruptive manner, he or she should be given a clear warning that further disruption could result in termination of the interview or ejection from the meeting. If the representative continues to engage in disruptive conduct, the employer may either discontinue the meeting or eject the representative from the interview. If the employer terminates the interview, the employer should inform the employee that it will have to make a decision without the information it hoped to obtain during the meeting.
The employer may also impose discipline if the representative is an employee. Before doing so, however, the employer should consult with counsel to better avoid claims of retaliation for the representative’s engagement in protected union activity.
Q. Does an employee have the “right to remain silent”?
No. As long as the requirements of Weingarten have been met, management may require employees to answer questions, and employees must do so fully and truthfully. If they fail to do so, then they may be charged with insubordination.
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