Employees do not have to be alone when questioned by an employer in a situation that might result in discipline. An employee's right to representation in investigatory or pre-disciplinary meetings was established in a 1975 United States Supreme Court decision, NLRB v. Weingarten, Inc. These rights are commonly called Weingarten Rights.
How does an employee exercise their Weingarten rights?
"I would like my union representative present" is sufficient to invoke the right.
But you may read your Weingarten Rights:
“If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I respectfully request that my union representative be present at this meeting. If this discussion could lead to my being disciplined and you deny my request for representation, I choose not to answer any questions.”
Does the employer need to inform the employee of their Weingarten Rights?
No.
When can an employee exercise their Weingarten rights?
As soon as the employee becomes aware or has reasonable belief that the meeting is to seek information that may result in discipline. The employee can make the request at any time, even in the middle of the meeting.
What can the employer do after you ask for your union representative for an investigatory or pre-disciplinary meeting?
They have one of three choices:
- Grant the request and delay questioning until the union representative arrives and (before continuing 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.
Can an employee waive their Weingarten Rights?
Yes.
- If the employee does not ask for union representation during the investigatory or pre-disciplinary meeting, it is considered they waived their rights.
- If the employee voluntarily agrees to continue the investigatory or pre-disciplinary meeting without representation after they have requested a union representative.
- If the employer makes a threat, “things will be worse if we have to wait for your union representative,” then the choice is not deemed “voluntary.”