Question:

I have been asked to investigate a hostile environment sexual harassment complaint. One of the employees who may have been involved in creating a hostile environment wants to bring a co-worker to our meeting. For confidentiality reasons, I do not think that is such a good idea. Am I legally required to allow this employee to bring a co-worker?

Answer:

Your question raises the issue of when and which employees are entitled to what are known as “Weingarten Rights.” The concept of Weingarten rights originates from the 1975 case of National Labor Relations Board (“NLRB”) v. Weingarten, Inc. In the Weingarten case, the United States Supreme Court held that the National Labor Relations Act (“NLRA”) gives a unionized employee the right to refuse to submit, without union representation, to an interview which he or she reasonably fears may end in discipline.

“Weingarten Rights” only apply to investigatory interviews and not to disciplinary meetings or discharge conferences lacking any investigatory element. An employer does not have to inform employees of their Weingarten rights. Instead, an employee may have to take the initiative by requesting that a co-worker be present. The employee cannot be punished for making this request. In addition, only a co-worker may be present. Although there may be other good reasons to do so, the employer does not have to allow an outsider such as a lawyer to attend a meeting. Finally, the co-worker representative is not limited to merely acting as a witness to the investigatory interview. The co-worker may ask questions and make comments but does not have the right to obstruct the interview.

If you are a unionized employer, the employee you wish to meet with does have Weingarten rights and therefore, the employee has the right to refuse to submit to the interview without union representation. If you are a non-union employer, the Weingarten rule no longer applies to you. This is a result of the National Labor Relations Board (“NLRB”) overruling its own decision in what is known as the Epilepsy Foundation case. In that 2001 case, a United States Court of Appeals affirmed an NLRB decision which extended the application of the Weingarten rules to non-union employees. However, on June 9, 2004, the NLRB , in a matter involving the IBM Corporation overruled its own decision in the Epilepsy Foundation case and as a result of this decision, the Weingarten rights no longer apply in a non-union environment.
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