Rights of Employee to Demand Representation During Investigatory Interview Limited to Union Settings

In June, the National Labor Relations Board (“NLRB” or the “Board”) overruled its controversial 2000 decision in Epilepsy Foundation and concluded that employees in non-union workplaces are not entitled to request that a co-worker or other representative be present at an investigatory interview conducted by his employer.  As will be further explained below, the so-called Weingarten “right to representation” has traditionally been available to employees in a union setting.  In its 2000 Epilepsy Foundation decision, however, the Board, in a surprising decision, extended “Weingarten rights” to non-union employees.  Last month, in IBM Corporation, 341 N.L.R.B. No. 148 (June 9, 2004), the Board returned the law to what it had been before 2000.      

In its recent ruling in the IBM case, the Board noted that non-union employers found themselves limited in their ability to investigate in a prompt, thorough and confidential manner the possible misconduct of employees without interference from co-workers.  Among their greatest concerns, the Board majority said was that “if information obtained during an interview is later divulged, even inadvertently, the employee involved could suffer serious embarrassment and damage to his reputation and/or personal relationships and the employer’s investigation would be compromised by inability to get the truth about workplace incidents.”  Emphasizing the substantial rise in the need for investigatory interviews, the Board observed that employers must now conduct investigations for such diverse issues as employment discrimination and harassment, workplace violence, corporate abuse, and real and threatened terrorist attacks. 

The new IBM Corporation decision returns the law to pre-2000 status.  Non-union employees still have the right to ask for the presence of a co-worker before an investigatory meeting and cannot be disciplined simply for making such a request.  However, the non-union employee no longer has the right to demand the presence of a co-worker during an investigation or to refuse to participate in the session until they are provided a “representative.”  An employee’s refusal to cooperate with a company investigation can be the basis for disciplinary action. 

There is a final word of caution, however.  It is important to remember that non-union employees still may be covered under the National Labor Relations Act if they engage in other “concerted activities” for “mutual aid and protection.”  This could include activities such as an employee complaining (on behalf of others) about the terms and conditions of employment.  For more information about labor law issues, please contact Todd A. Leeson (540) 983-9437.

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