Every Employee’s “Section 7” rights in the workplace PART 2

In last week’s article, employee Section 7 rights were discussed with some examples of what can happen to any employer who does not understand that the National Labor Relations Act applies to non-union businesses.

This week another employee Section 7 right is being looked at.

As a result of a situation in the workplace and complaint by one of your employees, you being to investigate the situation and start to interview employees one by one. The third employee to interview comes into your office and says that she wants a co-worker to sit in the interview also. This is a problem because you are trying to maintain a level of confidentiality about the process and don’t want people to know what is going on until you complete the investigation.

Can you deny the request?

Up until 2000 the answer was yes, as long as the employee was not a union member. The rule was that union employees had the right to have union stewards present during investigative interviews. NLRB v. Weingarten, Inc., 420 US 251 (1975). These rights were known as “Weingarten rights,” named after the 1975 Supreme Court decision. In the 25 years between 1975 and 2000, the rights have applied only to union-represented employees.

However, in July 2000, the National Labor Relations Board reversed its long-standing rule and held that employers must grant employee requests to have a coworker present during an investigatory interview even when they are made by employees who are not represented by a union. A non-union, non-supervisory employee who makes the request may be accompanied by a coworker of his/her choice during any meeting or investigatory interview which the employee “reasonably believes” may result in disciplinary action. Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92 (2000).

The NLRB decision was affirmed on appeal by the United States Circuit Court of Appeals for the District of Columbia. Epilepsy Foundation v. NLRB, 268 F3d 1095 (DC Cir 2001), petition for certiorari filed (March 4, 2002) (No. 01-1292). The DC Circuit concluded that “the presence of a coworker gives an employee a potential witness, advisor, and advocate in an adversarial situation, and, ideally, militates against the imposition of unjust discipline by the employer.

The Board’s determination that an employee’s request for a coworker’s presence at an investigatory interview is concerted action for mutual aid and protection and thus is within the realm of Section 7.

Given the change in status of the Board and challenges to this decision being raised in court, you should check with competent professionals to determine the validity of an employees’ Weingarten rights in your specific situation.

Glenn Brown is the Co-Founder and Principal of the Kansas City based HR consultant firm, G & J Consultants, LLC. In addition to having directed the HR Department of a health care services company, Glenn is an attorney with 15 years experience assisting businesses of all sizes and industries in complying with employment and labor legal issues. G & J Consultants specializes in providing small and medium sized businesses with traditional HR services as well as compliance with employment laws and regulations.