March 1998

Weingarten Rights

QUESTION:  

I know that on some occasions employees must be given the right to representation during discipline, interviews, etc...  What does it mean to give employees the "right to representation" and when does this right need to be given to an employee?

ANSWER:

The rights you are referring to are commonly called "Weingarten rights."  In short, during an investigatory interview where the employee reasonably believes that discipline will result, the employee has the right to have his/her union representative present, if the employee requests such representation.

BACKGROUND:

First, it is important to note that Weingarten rights are only applicable to unionized employees.  A non-unionized employee has no right to have his/her attorney, spouse, friend or coworker present during a disciplinary meeting, a termination meeting, etc...  If a non-union employee brings an attorney, spouse, etc... to a disciplinary or terminating meeting, the Agency is under no duty to meet with the employee and the third party.

Weingarten rights "attach" when management is meeting with an employee and the employee reasonably believes discipline will result from the meeting or discussion.  For example, if an employee is being questioned as a witness in an unlawful harassment investigation, and during the questioning, the employee admits to having violated the Agency's Unlawful Harassment Policy, the interview has turned investigative because the next line of questioning is likely to be about the employee's violation of the Policy.  Thus, if the employee requests, he/she is entitled to have a union representative  present for the rest of the interview.

There is a body of law on what the term "investigatory" means.  Generally, employers are not obligated to give employees Weingarten rights when a manager is just giving the employee instructions, correcting the employee's work technique or training the employee.  The law is somewhat unclear about whether employees must be given Weingarten rights in a pre-discipline counseling session.  To be on the safe side, we recommend that Agencies err on the side of caution and give the employee their right to representation if there is any question about the circumstances.  The same is true for whether the right attaches if a manager is giving an employee a written warning. 

The exercise of an employee's right to representation must not interfere with legitimate employer prerogatives (for example, protecting the safety of other employees or other operational necessities).  Moreover, the employer has no duty to bargain with the representative (and should refrain from doing so), but must give the representative the right to have meaningful participation such as allowing the representative to ask questions and to speak on behalf of the employee. 

The CSRMA Employment Hotline provides free legal advise to all CSRMA members on various employment issues.  For more information on the hotline, please call Lynn Lieber with Fisher & Phillips at (650)592-6160.