Let’s say you are conducting a disciplinary investigation and have called in the employee at issue who, before you say anything, states “I want my Weingarten rights” – what is the employer to do? Employers not familiar with the term may feel like they have walked into a TV cop show.
Unlike Miranda (a la cop show) rights, Weingarten rights are limited in scope and application. Weingarten rights were established in a 1975 U.S. Supreme Court case, NLRB v. J. Weingarten, Inc., that made it an unfair labor practice under the National Labor Relations Act (NLRA) to ignore a properly made employee request to have a fellow union member present at an investigative interview that could result in employee discipline. 420 U.S. 251 (1975). Upon such a request, the employer must allow a union representative to be present (under certain controlled, non-adversarial rules) or discontinue the interview. Whether this NLRA procedural right applies to non-union employment has varied over recent administrations and changes in the NLRB (Carter – yes; Reagan – no; Clinton – yes; Bush – no; Obama – no change so far). These fluctuations in NLRB position can certainly create confusion.
Under the current law, if the employer facing the Weingarten demand is not dealing with a request from a union-represented employee, then the request is of no legal force and effect. If it is a union situation, then it is “full stop” requiring careful adherence to theWeingarten rule and NLRB guidance regarding how to respond to the request. Of course, nothing stops the “at-will” employer from voluntarily allowing a co-worker to be present at an investigative interview, although those situations should probably be rare, non-precedential, and carefully thought-out — likely with advice of counsel.
Takeaway: Just because an employee says “Weingarten” doesn’t mean that the employer needs to change course in an investigative interview. At the threshold is the determinative question of whether the investigation involves a unionized employee. Only then do somewhat complicated Weingarten rules apply to an investigative interview. But care is necessary – you never want the NLRB to say “Book’em, Dan-O” to you!