Your Weingarten Rights

What is Weingarten

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 at investigatory interviews. These rights have become known as the Weingarten Rights.

 

How to Invoke Your Weingarten Rights

“I am a member of AFSCME Local 199. I am requesting my right as granted under the U.S. Supreme Court “Weingarten” decision to have a union representative present during this meeting because I reasonably believe that it may result in disciplinary action against me or impact my personal working conditions. If my request for representation is denied, I may refrain from answer accusatory questions until such time I am properly represented.”

 

When Do Employees Have a Right to Request a Union Representative? 

Your right to request a representative arises during an investigatory interview. A useful comparison is an individual’s Miranda right to an attorney when questioned by law enforcement. However, unlike the right to counsel in a Miranda setting, employers are not required to inform union members of their rights under Weingarten.

 

Any meeting may be an “investigatory interview” provided that the following occurs:

  • A manager, representative of management, or supervisor is seeking to question you. 
  • The questioning is part of an investigation into your performance or work conduct. During an investigatory interview, a representative of management may require you to defend, explain, or admit misconduct or work performance issues that may form the basis for discipline or discharge. 
  • You reasonably believes that the investigation may result in discharge, discipline, demotion, or other adverse consequence to your job status or working conditions. 
  • You request a union representative. Employers are not required to advise employees of their right to representation and third parties (including union representatives) may not make the request on behalf of the employee.

 

What Types of Meetings Are Not Covered by Weingarten?

Employers need not grant an employee’s request for a representative in the following situations: 

 

  • Instructional meetings where an employee receives training or correction on work techniques. Meetings of this nature generally do not lead to discipline. 
  • Meetings in which an employer informs an employee (or employees) of personnel policies. Often these meetings do not require questioning of employees and do not lead to discipline. 
  • Meetings in which the employee is informed in advance that no discipline or adverse employment action will result from the interview.
  • Meetings about disciplinary decisions that have already been made. If an employer has made a final decision on a disciplinary action, a meeting with an employee to inform them of that decision is not considered investigatory.  In the same vein, if an employee initiates a meeting to discuss a disciplinary action that they have experienced, that meeting is not investigatory in nature because any discipline that the employee has experienced has already occurred.   
  • Meetings in which an employee is questioned as part of an investigation of another employee’s conduct or performance. For example, an employee who witnesses another employee’s misconduct is not entitled to Weingarten representation if they are questioned about what they observed.

 

What If You Don’t Know What Type of a Meeting It Will Be?

When in doubt – CALL YOUR UNION!