An employee’s Weingarten rights give him or her the right to union representation throughout an investigation. The employee must assert these rights, which the Supreme Court acknowledged in the J’ Weingarten Inc. case in 1975. A supervisor is not obligated to inform an employee of his or her entitlement to union representation.
Employees are only given Weingarten privileges during investigation interviews. When a supervisor questions an employee to acquire information that could be used as a basis for disciplinary or asks the employee to defend his or her actions, this is known as an investigatory interview.
If an employee has a reasonable belief that what he or she says may result in disciplinary or other negative consequences, the employee has the right to seek union representation. Management is not required to inform employees of their Weingarten rights; it is the obligation of the employees to be aware of their rights and to exercise them.
When an employee requests the presence of a union representative, management has three choices:
- It can pause the inquiry until the representative arrives.
- It can cancel the interview or
- Inform the employee that the interview will be cancelled unless he or she voluntarily relinquishes their right to union representation.
It can pause the inquiry until the representative arrives.
It has the authority to cancel the interview or tell the employee that the interview will be cancelled unless the employee waives his or her right to union representation voluntarily.
When an employee asks for union representation during an investigational interview, the employer shall strive with the employee to find a mutually agreeable time for the interview within a reasonable time frame (1 – 2 days). The conference should not be postponed indefinitely due to the lack of union representation.
Under Weingarten, when do employees have a right to representation?
You have the right to union representation during the meeting if you have a reasonable concern that the answers you give will result in you being disciplined.
Employees have Weingarten rights if they meet the following criteria:
- “Investigatory interviews,” in which the supervisor is seeking to elicit facts, to have the employee explain his or her conduct, discover the employee’s “side of the story” or obtain admissions or other evidence.
- A supervisor’s request for a written statement or written answers to interrogatories about an incident or accident in which the employee’s conduct may be at issue.
- A meeting or conversation in which the employer is seeking information to support a decision to impose discipline or has not yet determined whether to do so.
Weingarten rights are not available to employees in the following circumstances:
- When the purpose of the meeting or conversation is to communicate work instructions, training, or necessary corrections.
- When the meeting’s sole goal is to tell the employee of a previously determined disciplinary decision and no more information is sought from the employee.
- When the employer has assured the employee before the interview that there will be no disciplinary or negative consequences if the interview goes well, the employer follows through on that promise.
- When, after the employer notifies the employee that he or she is being disciplined, the employee initiates a further discussion.