Frequently Asked Questions Regarding Weingarten Rights
- What are Weingarten rights?
Employees (currently whether a member of a union or not) have the right to insist upon the presence of a co-worker or union representative in an investigatory interview that is reasonably believed will result in disciplinary action against the employee. The employee is also entitled to consult with such representative prior to the investigatory interview.
- What employees have Weingarten rights?
Weingarten rights currently apply to all employees who have the right to act concertedly and organize in accordance with the National Labor Relations act. This, non-supervisory employees in most occupations enjoy Weingarten rights. In addition, it does not matter whether an employee is a member of a union. The national Labor Relations Board recently expanded 9again) Weingarten rights to cover non-union employees in addition to union employees.
- Do Weingarten rights apply automatically?
No. The employee must request the representation. However, the employee’s request need not be technical or empathic. Nor must the employee repeat a request for representation where an interview originally not anticipated to result in disciplinary action against the employee becomes so.
- Can Weingarten rights be waived?
Yes, but an employee’s waiver of Weingarten rights must be made knowingly and voluntarily, and it must be clear and unmistakable.
- Do Weingarten rights apply to meetings only to impose discipline?
No. Weingarten rights do not apply where a meeting or conference is intended solely to impose discipline. Meetings to discuss work performance problems may or may not invoke Weingarten rights.
- What amounts to a reasonable belief that an investigatory interview will result in disciplinary action?
As noted above, in order for Weingarten rights to apply, an employee must have a reasonable belief that he/she will be subject to discipline as a result of an investigatory interview. Where an employee has been advised that disciplinary action will not be taken, Weingarten rights will not apply. Likewise, day-to-day office conversations or shop-floor discussion will generally not invoke Weingarten rights, unless an employee has reason to expect disciplinary action to result. A drug or alcohol test may invoke Weingarten rights where the test is part of an investigation. Routine fitness-for-duty tests do not typically invoke Weingarten rights.
- Who may be an employee’s representative?
In a union setting, an employee has the right to have a union representative or co-worker present during the investigatory interview. In a non-union setting, an employee has the right to have a co-worker present. If the chosen representative is not available, an employer can require the employee to select another representative. In a union setting, however, the employee has the right to insist upon the presence of a union representative. Private Counsel does not constitute ion representation. Similarly, Weingarten rights do not include the right to have a private attorney present.
- May the representative participate in the interview?
The representative is not required to remain silent during the interview, but the representative is not entitled to be hostile or adversarial, in a union setting the employer is not required to collectively bargain with a union representative.
- May employer deny an employee Weingarten rights where a representative is not available?
An employer may proceed with an investigatory interview without the employee’s chosen representative when such representative is unavailable. An employer is not required to unduly delay an investigatory interview. However, the employee must be provided an alternative representative if requested.
- May an employer forego the interview rather than honor the employee’s Weingarten rights?
Yes. If an employee properly invokes his/her Weingarten rights, the employer may simply refuse the request and forego the interview. While an employer may also impose any disciplinary action without utilization of such interview, such action may suggest retaliation. Of course, the employee may waive his/her Weingarten rights and participate in an interview without representation, but employers must ensure that a waiver is knowing and voluntary.
- Is it a violation to discipline an employee for invoking his/her Weingarten rights?
Yes. It is a violation of the National Labor Relations Act to discipline an employee for invoking his/her Weingarten rights. Similarly, it is a violation for an employer to discipline an employee for refusing to waive his/her Weingarten rights, i.e. participate in the interview without representation.
- May an employer discipline an employee for improperly or mistakenly refusing to participate in an interview?
Generally, yes. If Weingarten rights do not apply, an employer may discipline an employee for refusing to participate in an interview absent representation. Also, if Weingarten rights apply, an employer may discipline an employee who refuses to participate in an interview even with representation.
- What remedies are available to an employee whose Weingarten rights have been violated?
Full make-whole remedies, including reinstatement and back-pay, are available to an employee whose Weingarten rights have been violated. Where disciplinary action is taken against an employee based on information obtained apart from the violative interview, though, make-whole remedies may not be applicable.
- What foundation are Weingarten rights based upon?
Weingarten rights based upon three sources of law: (1) section 7 of the National Labor Relations Act, which gives employees the right to act concertedly for their mutual aid and protection; (2) the United States Supreme Court, which has endorsed Weingarten rights for unionized employees, and (3) the National Labor Relations Board, which currently endorse Weingarten rights for both union and non-union employees.
