Like a tennis match, an employee’s right to a witness during an employer’s investigatory interview has bounced back and forth over the years. This month the National Labor Relations Board confirmed that a non-union employee does not have the right to the presence of a witness when interviewed by her or his employer during an investigation.
Led by its new Chairman, Philip A. Miscimarra, the NLRB rejected a request that the NLRB use its rulemaking authority to extend the right to a witness to a non-union employee. In light of that decision, the NLRB is not likely to change its mind again, at least not during the next three and a half years.
Many years ago, the Supreme Court in NLRB v. J. Weingarten, Inc. ruled that unionized employees have a statutory right to the presence of a witness, typically a shop steward, during an employer’s investigatory interview. Later, the NLRB extended that right to non-union employees, but later reversed itself as the NLRB’s composition changed. Over the years, the NLRB has switched its position four times, with the latest and current result being that a non-union employee does not have the right to request a witness when being interviewed during an employer’s investigation.