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Weingarten RightsFrequently Asked Questions
Created by: County of Sonoma - SEIU Labor Management Committee, February, 2015.
Weingarten Rights are mandated by law, and materialized from an actual case (National Labor Relations Board vs. J. Weingarten, Inc.) decided by the U.S. Supreme Court in 1975. The rights announced by the Court are as follows:
Employees have the right to request that a representative be present at any investigatory meeting when the employee reasonably believes that disciplinary action might result from the investigation.
Discipline means oral or written reprimands, suspension without pay, reduction in pay, involuntary demotion, or termination.
This information is intended to answer the most common questions that employees and supervisors/managers encounter when applying these rights. Applicable Memoranda of Understanding should be consulted for further information and Human Resources staff as needed.
For additional information or questions, please contact Human Resources, or your union representative.
What is the purpose of Weingarten Rights?
The purpose, as stated in the original Supreme Court ruling, of allowing an employee in an investigatory situation to seek union representation is to ensure that the agency can accomplish the purpose of the investigation; to obtain all of the relevant facts and explore all issues regarding the matter under investigation.
Weingarten Rights are also intended to allow an employee who may be nervous, fearful or inarticulate under the circumstances, the opportunity to raise all relevant facts and issues related to the matter under investigation.
Having a trained and knowledgeable union representative to assist the employee in the process should result in a more thorough, timely and complete investigation if the employee understands their responsibilities and is assured their rights are not being violated.
Note: Supervisors and Managers can always choose to invite the participation of union representatives in meetings with employees to assist and to promote positive employer-employee relations even if the situation does not meet the requirements of Weingarten Rights.
Prior to the Meeting
What is the supervisor’s or manager’s role?
The supervisor or manager is responsible for clearly stating the purpose of the meeting. The supervisor or manager needs to provide enough information to the employee so he or she can decide whether or not to invoke their right to request a representative.
Does the supervisor need to inform the employee of his or her Weingarten Rights?
No, it is up to the employee to know their rights and to ask for representation. It is the supervisor’s responsibility to allow union representation if the employee invokes their right.
What is the employee’s role?
The employee is responsible for invoking his/her rights by requesting union representation if he/she reasonably believes that disciplinary action might result. The request does not have to be in any particular form.
What types of meetings are considered “investigatory”?
Examples of investigatory meetings are:
- Where the purpose of the meeting is to question an employee about a situation/incident or investigate an employee’s alleged misconduct, where discipline of any kind is a possible result.
- Where the purpose of the meeting is to elicit facts, the employee's "side of the story," or obtain admissions or other evidence either to determine whether or not discipline is warranted OR to support a disciplinary decision already made.
- Where the employee is required to explain or defend his/her conduct in a situation which the employee reasonably fears could result in discipline.
What are examples of meetings that are not considered investigatory?
Following are examples of meetings that are not normally considered investigatory. Keep in mind however, that it is the employee’s reasonable belief that is the deciding factor.
- Where the meeting or discussion is merely for the purpose of conveying work instructions, training, or needed corrections.
- Where the purpose of the meeting is to inform the employee about a disciplinary decision that has already been made and no information is sought from the employee.
- Where the employer has clearly assured the employee prior to the interview that no discipline or adverse consequences will result from the interview.
What about meetings to discuss performance?
Performance discussion meetings are typically regularly scheduled meetings, or meetings scheduled on an as needed basis, in which the purpose is for a supervisor/manager and subordinate to discuss work duties, projects, and objectives; provide guidance on work related matters; give constructive feedback, mentoring, and coaching, which may also include discussions to guide an individual’s work or behaviors. Performance meetings may also include the formal performance evaluation discussion meeting.
Generally, meetings to discuss employee performance are not considered investigatory and are not held with the intent or purpose of taking disciplinary actions, and therefore these meetings are outside the scope of Weingarten rights. Supervisors/managers are not precluded from investigating or questioning their staff or taking/delivering disciplinary actions in a standing meeting time; however, supervisors/managers should communicate in advance to the employee if the intent of a meeting is investigative or disciplinary in nature and therefore, within the scope of Weingarten.
What could lead to the employee having a reasonable belief that discipline will result?
While the supervisor’s stated purpose of the meeting many not be investigatory, it is the employee’s perception of the purpose that is relevant. The employee may come to this conclusion before or during the meeting. The supervisor should respect the employee’s reasonable belief that the meeting may result in discipline.
Following are some examples of factors that may cause an employee to have a reasonable belief that discipline will result. However, these factors are not required to be present.
- Has the employee received any prior discipline or counseling which would cause them to expect additional discipline?
- Have other employees been disciplined for conduct similar to that being investigated at this meeting?
Does the employee have a right to the steward or union representative of his/her choice?
The employee is not entitled to reschedule the meeting because a specific union representative is unavailable. If possible, the supervisor should try to accommodate the employees request as long as it does not result in unreasonably delaying the meeting. However, the supervisor may proceed with the meeting as long as another union representative is available at the scheduled meeting time.
What should the supervisor tell the union representative before the meeting?
The union representative should be informed of the subject matter of the investigation. The union representative has the right to consult privately with the employee before the meeting.
During the Meeting
What if the purpose of the meeting changes?
If the employee believes the purpose of the meeting has changed to an investigative interview, and they reasonably believe the information discussed at the meeting may lead to disciplinary action, the employee has the right to request a representative during the meeting.
What should the supervisor do when the employee invokes their right to representation during an investigatory meeting/ interview?
When the employee invokes their right to union representation the supervisor/manager has three options:
- Grant the request and delay questioning until the union representative is available. (This may mean that the meeting needs to be rescheduled to a later date or time.)
- Deny the request and end the interview.
- Give the employee the choice of either continuing the interview without representation or ending the interview.
What is the role of the employee?
The employee’s role is to answer the questions completely and truthfully.
What is the role of the Union representative?
The union representative’s role is more than just an observer. The union representative has the right:
- To assist and counsel the employee during the investigatory interview. Including advice on how to answer a question.
- To speak during the interview.
- To request the supervisor clarify a question.
- To provide additional information.
What are the consequences of failing to afford an employee his/her Weingarten rights?
The consequences of a Weingarten violation can be significant. The union may pursue an unfair labor practice charge. In addition, it is quite possible that any discipline of the employee whose Weingarten rights were violated could be overturned. The Civil Service Commission often considers whether the employer afforded the employee all procedural rights when evaluating whether there was just cause for discipline. In addition, the commission may well exclude any evidence that was obtained from an improper interview.