An internal investigation is an important mechanism an organization can use to address an allegation of wrongdoing, determine legal liability, identify individuals or parties with culpability, comply with regulatory requirements, develop corrective measures and enhance operational efficiencies. Buckner is pleased to continue its blog series highlighting best practices, strategies and techniques that can be used by organizational leaders and counsel during an internal investigation. Today’s post will continue our overview of Weingarten Rights, which came as a result of the United States Supreme Court’s 1975 decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), which upheld a National Labor Relations Board (NLRB) decision that held employees possess a right to union representation during investigatory interviews:
Per an employee’s Weingarten Rights, the following rules and protocols applies:
- An employee must make a clear request for union representation before or during the investigatory interview.
- An employee cannot be punished by an employer for making a request for union representation.
- After an employee makes the request for union representation, the supervisor can either:
a. “Grant the request and delay the interview until the union representative arrives and has a chance to consult privately with the employee”; or
b. “Deny the request and end the interview immediately”; or
c. “Give the employee a choice of: (i) having the interview without union representation; or (ii) ending the interview.”
- If the supervisor denies the request and continues to ask questions, then an unfair labor practice occurs (which results in the employee possessing the right to refuse to answer). Further, the employee cannot be disciplined by the employer for the refusal, but is required to remain until the supervisor concludes the interview. However, if the employee leaves the interview before the supervisor concludes it, then the employee’s action “may constitute punishable insubordination”.
Source: “Weingarten Rights”, University of Massachusetts Amherst, available at: ahttps://www.umass.edu/usa/weingarten.htm.