If one of your employees wants to bring a co-worker along to an investigative meeting that could result in discipline, you'd better let him.
Union employees have had such representation rights since a 1975 U.S. Supreme Court decision in NLRB v. Weingarten. A new ruling from the National Labor Relations Board (NLRB) extends these so-called Weingarten rights to nonunion workplaces.
The case involved Arnis Borgs and Ashraful Hasan, who weren't happy with their supervisor and let their executive director know it. When the executive director ordered a meeting with Borgs and the supervisor, Borgs refused to go unless Hasan could sit in. The next day, Borgs was fired for gross insubordination. The NLRB ordered the employer to reinstate Borgs with back pay.The board said the National Labor Relations Act "clearly protects the right of employees, whether unionized or not, to act in concert for mutual aid or protection." Having another worker present helps ensure the employer doesn't impose unjust punishment, the board reasoned. (Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92, 2000)
Advice: While this case dramatically expands the rights of workers in nonunion workplaces, remember that the right to co-worker representation applies only to investigative meetings. Thus, if your sole purpose is to discipline, as opposed to conducting an investigation, you may deny the employee's request to have a co-worker present.
If an employee makes a valid request for representation, you do have the option of canceling the meeting. But don't punish workers for refusing to attend such meetings without a witness. Under some circumstances, you also can require the employee to seek another witness if the requested person is not available.
One plus: You aren't required to notify nonunion workers that they now have these new Weingarten rights.
To read the NLRB decision (No. 331-92) go to www.nlrb.gov/slip331.html.
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