If you practice in the area of labor and employment, you should be aware of Weingarten 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) and the subsequently enacted statutes, which allow employees to request union representation during workplace investigatory examinations.
Weingarten specifically upheld an NLRB decision that the denial of such representation constitutes an unfair labor practice. Read on to learn more about Weingarten rights and how they can impact your clients, employer and employee alike.
When Do Weingarten Rights Apply?
An employee’s Weingarten rights only apply in certain workplace situations where:
- The employer is conducting an examination in connection with an investigation.
- The employee has an objectively reasonable belief that discipline could result.
- The employee has made a request for representation (Note that an employer is not required to advise an employee of their Weingarten rights).
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:
- Grant the request and delay the interview until representation is provided,
- Deny the request and immediately end the interview, or
- Allow the employee to choose whether to continue without representation or to end the interview.
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.
What Constitutes an Investigatory Examination?
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 that go into the analysis include:
- The status of the individual addressing the employee
- The location of the encounter (Is the employee in a supervisor's office?)
- The purpose of the encounter (Is it to ask questions and solicit information or an admission?)
- The manner/tone of the encounter (Is it confrontational?)
- The duration of the encounter
- Whether there was a formal agenda
- Whether there were any notices or warnings issued before the encounter
- Whether the employee had any prior misconduct allegations
- Whether other employees were disciplined for similar conduct
As an example of this analysis in practice, an NLRB decision in 2014 found a Weingarten violation where an employee was terminated for refusing to take a drug test without access to representation, which he had requested. In that case, the drug test was ordered by the employer specifically as part of an investigation into the employee’s conduct.
Remedies for Violations
Where there has been an investigatory examination violation, the NLRB has the authority to:
- Issue cease and desist orders
- Require remedial postings
- Require a repeat investigation with full union representation for the employee
- Utilize any other remedy to make the employee whole (such as reinstatement and back pay)
Weingarten Rights and Non-Union Employees
Although Weingarten rights initially only applied to union employees, the NLRB expanded these rights to non-union employees with its Epilepsy Foundation decision in 2000. Although non-union employees do not have access to union representatives, this case recognized their right to co-worker representatives during investigatory examinations. With this finding, the NLRB relied on an interpretation of language in the National Labor Relations Act protecting the rights of all employees to act in concert for “mutual aid or protection."
However, in 2004, the NLRB reversed this precedent with its IBM Corporation decision, limiting Weingarten rights to union employees. While the NLRB recognized that multiple interpretations of the NLRA were permissible, it refused to extend Weingarten rights to non-union employees on policy grounds due, in part, to workplace changes. With its recognition of multiple permissible interpretations and reliance on policy, the scope of Weingarten rights may very well change again in the future.
For more information on Weingarten rights, including further discussion on when they apply, see the additional guidance published by the FLRA. For further information on labor and employment law see the articles in FindLaw’s section on Corporate Counsel.