Home » Business & Finance » Workplace Issues » Weingarten Protection in the Workplace

Weingarten Protection in the Workplace

© Ronald J. Rakowski, SPHR, CELS

In 1975, the U.S. Supreme Court agreed with the National Labor Relations Board (NLRB) that a refusal by Weingarten, Inc. to allow a union steward to be present during an "investigatory" interview between company management and an employee suspected of theft violated the National Labor Relations Act (NLRA). Specifically, the Supreme Court determined that the employee's request for coworker participation during an investigatory interview that may have resulted in discipline was a "protected concerted activity" under the statute and that coworker presence during such interviews would serve the interests of bargaining unit employees.

Weingarten rights only apply to "investigatory" interviews scheduled to determine an employee's guilt or innocence. No such rights extend to meetings wherein management informs an employee of disciplinary action previously decided upon. In a union setting, the disciplined employee may, of course, take advantage of the grievance procedure available under the terms of an existing labor contract.

Following the Supreme Court's 1975 Weingarten decision, the NLRB initially ruled that Weingarten rights applied to all employees covered by the NLRA whether or not they are represented by a labor union. Later, both the NLRB and the courts decided that Weingarten rights only applied to employees represented by a labor union. On July 10, 2000, however, the NLRB reversed itself again and ruled that the Epilepsy Foundation of Northeast Ohio, a nonunion employer, violated certain provisions of the NLRA when it refused an employee's request for a coworker to accompany him to an investigatory meeting with members of the Foundation's management.

So, the NLRB's current position is that employees of both union and nonunion employers are guaranteed Weingarten rights, but only to the extent that those employees are covered by the provisions of the NLRA. Managers and supervisors are not covered by the statute and are not, therefore, protected by Weingarten rights. The statute also does not apply to non-retail employers with annual revenue transactions valued at less than $50,000. Retail employers must have annual interstate revenue transactions valued at $500,000 or more to be covered by the statute.

But, simply being eligible for Weingarten right protection doesn't guarantee that each and every investigatory interview will take place in the presence of a coworker. Employers are not required to inform employees that they have the right to invite a coworker to the interview and employers may cancel or terminate the interview if the investigated employee demands his or her Weingarten rights. Further, employers may require that pre-interview discussions between the employee and a coworker be conducted outside of work hours if time permits.

The copyright of the article Weingarten Protection in the Workplace in Workplace Issues is owned by Ronald J. Rakowski, SPHR, CELS. Permission to republish Weingarten Protection in the Workplace in print or online must be granted by the author in writing.