{"id":37312,"date":"2016-03-31T19:25:17","date_gmt":"2016-04-01T00:25:17","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/uncategorized\/non-unionized-employees-do-not-have-weingarten-rights.html"},"modified":"2016-07-27T16:29:11","modified_gmt":"2016-07-27T21:29:11","slug":"non-unionized-employees-do-not-have-weingarten-rights","status":"publish","type":"corporate","link":"https:\/\/corporate.findlaw.com\/litigation-disputes\/non-unionized-employees-do-not-have-weingarten-rights.html","title":{"rendered":"Workplace Investigations and Weingarten Rights: What You Should Know"},"content":{"rendered":"
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If you practice in the area of labor and employment, you should be aware of Weingarten <\/i>rights and how they can impact your clients, especially in cases involving employee misconduct. These rights are based on the Supreme Court decision in NLRB v. Weingarten, Inc. (1975)<\/i><\/a> and the subsequently enacted statutes<\/a>, which allow employees to request union representation during workplace investigatory examinations. <\/p>\n

Weingarten<\/i> specifically upheld an NLRB decision that the denial of such representation constitutes an unfair labor practice. Read on to learn more about Weingarten <\/i>rights and how they can impact your clients, employer and employee alike.<\/p>\n

When Do Weingarten <\/i>Rights Apply?<\/b><\/p>\n

An employee\u2019s Weingarten <\/i>rights only apply in certain workplace situations where:<\/p>\n

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  1. The employer is conducting an examination in connection with an investigation.<\/li>\n
  2. The employee has an objectively reasonable belief that discipline could result.<\/li>\n
  3. The employee has made a request for representation (Note that an employer is not required to advise an employee of their Weingarten <\/i>rights).<\/li>\n<\/ol>\n

    After an employee makes a clear request for union representation, the employer has only a few options in order to avoid a violation. Specifically, an employer must either:<\/p>\n

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    1. Grant the request and delay the interview until representation is provided,<\/li>\n
    2. Deny the request and immediately end the interview, or<\/li>\n
    3. Allow the employee to choose whether to continue without representation or to end the interview.<\/li>\n<\/ol>\n

      If an employee clearly requests representation, but the employer proceeds, then this would likely constitute an unfair labor practice and the employee could refuse to cooperate. However, employers should take note that they may be able to avoid a violation by clearly informing the employee that no discipline will result from the examination and then ensuring that none is taken.<\/p>\n

      What Constitutes an Investigatory Examination?<\/b><\/p>\n

      There are no rigid criteria for determining what constitutes an investigatory examination. Instead, similar to custodial interrogation in the criminal law context, determining whether an employer has conducted an investigatory examination is fact-specific and determined by the totality of the circumstances. Some of the non-exhaustive factors<\/a> that go into the analysis include:<\/p>\n