Employee's Right to Union Representation ("Weingarten Rights")
The rights of unionized employees to have present a union representative during investigatory interviews were announced by the U.S. Supreme Court in a 1975 case (NLRB vs. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689). These rights have become known as the Weingarten rights.
Employees have Weingarten rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information which could be used as a basis for discipline or asks an employee to defend his or her conduct.
If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has the right to request union representation.
Management is not required to inform the employee of his/her Weingarten rights; it is the employee's responsibility to know and request.
When the employee makes the request for a union representative to be present, management has three options:
- It can stop questioning until the representative arrives;
- It can call off the interview; or
- It can tell the employee that it will call off the interview unless the employee voluntarily gives up his/her rights to a union representative (an option the employee should always refuse.)
Employers will often assert that the only role of a union representative in an investigatory interview is to observe the discussion. The Supreme Court, however, clearly acknowledges a representative's right to assist and counsel workers during the interview. The Supreme Court has also ruled that during an investigatory interview management must inform the union representative of the subject of the interrogation. The representative must also be allowed to speak privately with the employee before the interview.
During the questioning, the representative can interrupt to clarify a question or to object to confusing or intimidating tactics. While the interview is in progress the representative can not tell the employee what to say but he may advise them on how to answer a question. At the end of the interview the union representative can add information to support the employee's case.
Public Employees Constitutional Right to a Pretermination Hearing ("Loudermill Rights")
In another decision announcing a Constitutional right for public employees not possessed by private employees, the Supreme Court in Cleveland Board of Education v. Loudermill held that most public employees are entitled to a hearing before they are discharged. However, the "hearing" is not a full evidentiary hearing and need not include the opportunity to cross-examine your accusers. All that is required is:
- Oral or written notice of the charges and time for hearing;
- An explanation of the employee's evidence; and
- An opportunity to present "his side of the story."
Further, since the issuance of the Loudermill decision, the lower courts have strictly limited the remedy for Loudermill violations. Specifically, an employee deprived of his Loudermill rights is not entitled to reinstatement if the employer can prove that there was just cause for the discharge in any case.
Fifth Amendment Applies to Interrogations of Public Employees ("Garrity Rights")
Public employees have certain constitutional rights that apply in their employment that may not apply to private employees. For example, in Garrity v. New Jersey, the Supreme Court held that statements obtained in the course of an investigatory interview under threat of termination from public employment couldn't be used as evidence against the employee in subsequent criminal proceedings. If, however, you refuse to answer questions after you have been assured that your statements cannot be used against you in a subsequent criminal proceeding, the refusal to answer questions thereafter may lead to the imposition of discipline for insubordination. Further, while the statements you make may not be used against you in a subsequent criminal proceeding, they can still form the basis for discipline on the underlying work-related charge.
To ensure that your Garrity rights are protected, you should ask the following questions:
- If I refuse to talk, can I be disciplined for the refusal?
- Can that discipline include termination from employment?
- Are my answers for internal and administrative purposes only and are not to be used for criminal prosecution?
If you are asked to provide a written statement regarding the subject of the interview, the following statement should be included in your report:
"It is my understanding that this report is made for internal administrative purposes only. This report is made by me after being ordered to do so by my supervisor. It is my understanding that refusing to provide this report could result in my being disciplined for insubordination up to and including termination of employment. This report is made pursuant to that order and the potential discipline that could result for failing to provide this report."
A basic principle in disciplinary cases is that management must have "just cause" to impose the discipline. Arbitrators' decisions over the years have resulted in a kind of measuring stick -- known as the "Seven Tests of Just Cause' -- that can be applied to discipline cases. The just cause standard is contained in the following seven questions:
- Was the employee adequately warned of the probable consequences of the employee's conduct?
- Was the employer's rule or order reasonably related to the efficient and safe operation of the job function?
- Did management investigate before administering the discipline?
- Was management's investigation fair and objective?
- Did the investigation produce substantial evidence or proof that the employee was guilty of the offense?
- Has the employer applied its rules, orders and penalties evenly and without discrimination?
- Was the amount of discipline reasonably related to the seriousness of the offense and the employee's past service and record? (Did the "punishment fit the crime?)
If the answer to one or more of these questions is "no," the union can argue that management did not have just cause to take the disciplinary action.