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Tip Tuesday: Weingarten Rights

December 3, 2019

In 1975, the United States Supreme Court in the case of NLRB v. J. Weingarten, Inc. 420 U.S. 251 (1975) upheld a National Labor Relations Board (NLRB) decision that employees have a right to union representation during investigatory interviews. These rights have become known as “Weingarten Rights,” and are viewed as an extension of an employee’s rights under Section 7 of the National Labor Relations Act (NLRA).

What does this mean for HR Managers?

While the employee generally must invoke his or her Weingarten Rights, if you plan to conduct an investigatory interview that the employee reasonably believes may result in discipline, you should offer the employee the opportunity to have a union representative present. The representative may be a designated union representative or a coworker. If the employee requests someone specifically, you should make that person available if possible. If the employee waives representation, you may proceed with the investigatory interview (but get a witness to the waiver).

If the employee makes the request, the manager must choose from among three options:

  • Grant the request and delay questioning until the union representative arrives and (prior to the interview) the representative has a chance to consult privately with the employee;
  • Deny the request and end the interview immediately; or
  • Give the employee a clear choice between having the interview without representation, or ending the interview.

If an employer denies the request for union representation, and continues to ask questions, it commits an unfair labor practice and the employee has a right to refuse to answer. The employer may not discipline the employee for such a refusal.