SafeAlert - October 2000

Investigative Interviews-Another Employer Tripwire

On July 10, 2000, the National Labor Relations Board (NLRB) ruled that nonunion employees have the right to have a co-worker present during an interview that might reasonably lead to disciplinary action. Prior to this opinion, these so called Weingarten rights only applied to union employees.

The Board concluded that the right to have a co-worker present during investigatory interviews “affords unrepresented employees the opportunity to act in concert to prevent a practice of unjust punishment.” Dissenting Board members concluded that this would serve as an “unknown tripwire” for uninformed employers and deprive them of the right to deal directly with their nonunion employees.

Failure to grant Weingarten rights is a violation of the National Labor Relations Act. The NLRB has exclusive jurisdiction and the sole remedy is an unfair labor practice proceeding filed with the Board. The Board is empowered to order make-whole remedies including reinstatement, back pay and cease-and-desist orders.

A policy should be developed to handle Weingarten requests that considers the following:

• The rule only applies to interviews that the employee reasonably believes may give rise to discipline.
• The rule does not apply to meetings to execute disciplinary action.
• The employer is not required to advise the employee of the rights.
• The rule does not apply to supervisors or management as defined by the National Labor Relations Act.
• If a request is made for the presence of a co-worker, the request must be granted or the interview terminated.
• The rule only permits the presence of a co-worker and not third parties (e.g., an outside attorney).
• If a requested co-worker is not available, the employee must choose another available co-worker.

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