KNOW 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. Until my representative arrives, I choose not to participate in this discussion.”
WHAT ARE WEINGARTEN RIGHTS?
Weingarten Rights provide employees with the right to union representation during an investigatory interview when the employee reasonably believes the interview could lead to discipline.
This right was established for private-sector employees in the 1975 United States Supreme Court decision NLRB v. Weingarten, Inc. The Massachusetts Department of Labor Relations has recognized similar rights for public employees covered by M.G.L. c. 150E.
An employer does not have to inform an employee of their Weingarten Rights. The employee must request representation.
WHEN SHOULD AN EMPLOYEE REQUEST REPRESENTATION?
An employee should request union representation as soon as they become aware that an employer is seeking information that could result in discipline or could be used to support a disciplinary decision.
The request does not need to be made in any particular form and does not need to be in writing. An employee may simply state that they want union representation before answering questions.
When in doubt, ask for representation.
WHAT HAPPENS AFTER AN EMPLOYEE REQUESTS REPRESENTATION?
Once an employee properly requests union representation, the employer may:
- Grant the request and delay questioning until the union representative arrives and has an opportunity to consult privately with the employee;
- End the interview; or
- Give the employee the choice of continuing the interview without representation or ending the interview.
An employee should not be required to continue answering investigatory questions while waiting for a requested representative.
WHAT CAN A UNION REPRESENTATIVE DO?
A union representative is not merely a silent observer. The representative may actively assist the employee during the meeting. This may include consulting privately with the employee, asking for clarification, advising the employee about how to answer questions, providing relevant information, and helping ensure that the employee understands the nature of the investigation.
The representative may not obstruct the employer’s legitimate investigation, but management generally cannot require the representative to remain completely silent.
WHEN DO WEINGARTEN RIGHTS GENERALLY NOT APPLY?
Weingarten Rights generally do not apply:
- When a meeting is solely for the purpose of providing routine work instructions, training, or necessary corrections and the employer is not seeking information that could lead to discipline.
- When the purpose of a meeting is solely to inform an employee of a disciplinary decision that has already been made and the employer is not seeking information from the employee.
- When the employer has clearly assured the employee before the interview that no discipline or adverse consequences will result from the interview, provided the employer honors that assurance.
Important: A meeting that begins as a routine conversation or as notification of a decision may become investigatory if management begins asking questions that could lead to additional discipline. If that happens, the employee should request union representation before answering those questions.
REMEMBER
If you believe a conversation with an administrator could lead to discipline, stop and request union representation before answering questions. You do not have to wait until someone tells you that the meeting is “investigatory.”