Q. We are a nonunion shop. One of our employees is currently under investigation for sexual harassment. He has asked to have a representative present during all meetings and interviews related to the investigation. Do we have to permit him to have representation?
A. No. Nonunion employees do not have a right to representation at investigatory interviews or disciplinary meetings. In a union setting, rank-and-file employees enjoy what are called Weingarten Rights—the right to union representation at these encounters.
Those same rights do not extend to a nonunion setting. In 2004, the National Labor Relations Board (NLRB) concluded, “The right of an employee to a co-worker’s presence in the absence of a union is outweighed by an employer’s right to conduct prompt, efficient, thorough and confidential workplace investigations.”
While the NLRB mentioned only a co-worker representative, the employer had denied the employee’s request for a co-worker or an attorney to be present.
It is important to note, however, that the federal courts and the NLRB have gone back and forth on this issue over the years. Because President Obama has already appointed a new NLRB chairperson, and will fill three other vacancies on the NLRB, there is a good chance this rule will change if the issue makes its way back to D.C. in the next three years.
For now, however, you are well within your rights to prohibit employees from having representation during investigatory interviews or disciplinary meetings.
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