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Internal Investigations 101: Weingarten Rights (Part III)

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:

According to “Weingarten Rights”, which was published by the University of Massachusetts Amherst, a union representative’s rights during the investigatory process are as follows:

  1. The union representative is not required to only be a “silent witness”, and has the right to:
    –“be informed by the supervisor of the subject matter of the interview”
    –“take the employee aside for a private conference before questioning begins”
    –“speak during the interview”
    –“request that the supervisor clarify a question so that what is being asked is understood”
    –“give the employee advice on how to answer a question”
    –“provide additional information to the supervisor at the end of the questioning”.
  2. The union representative does not “have the right to tell the employee not to answer nor, obviously, to give false answers”. An employers can impose discipline when an employee refuses to answer questions.

Source: “Weingarten Rights”, University of Massachusetts Amherst, available at: ahttps://www.umass.edu/usa/weingarten.htm.

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About Michael L. Buckner, Esquire

An attorney who provides clients with internal investigation, civil litigation, estate planning and compliance services.

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