Good news: Employees in nonunion workplaces no longer can insist on co-workers joining them during investigatory meetings. You can legally deny such employee representation requests thanks to a new National Labor Relations Board (NLRB) ruling, the board's fourth flip-flop on this issue in the past 23 years.
Background: In 2000, the NLRB greatly expanded employee rights by ruling that even nonunion employees were allowed to bring co-workers to investigatory meetings or interviews if the employees believed the meeting might lead to discipline. Now the board has reversed itself, saying that nonunion employees don't have such Weingarten rights, which are named after the 1975 court case that established the rule. Employees at unionized businesses still retain their Weingarten right to representation.
Key points: If your organization chooses, it can still allow employees to bring co-workers to such meetings. This ruling only says that you're not required to offer employees this right. Plus, the NLRB says your organization can't discipline employees or retaliate against them for making such requests.
The case: Three nonunion IBM employees asked to have a co-worker present while they were being interviewed about alleged harassment. IBM denied all three requests and fired the employees about a month later. The employees filed unfair labor practice charges.
But the NLRB sided with IBM, effectively reversing the Clinton-era rule. It said organizations should be allowed to conduct confidential investigations of harassment, discrimination, violence and security concerns. "Some employers, faced with security concerns that are an outgrowth of the troubled times in which we live, may seek to question employees on a private basis," said the NLRB. (IBM Corp., 341 NLRB No. 148, June 9, 2004)
Outlook: This may not be the end of the ping-pong policy changes. Because the NLRB's five members are appointed by the president and serve limited terms, the policy could flip again if John Kerry wins this fall.
- Include past conduct in 'for-cause' clause
- Use solid research to back business-necessity defense when deciding not to accommodate
- Include federal jury service protection in your employee handbook and policies
- Beware promises about schedules, retention that could create an employment contract
- Stop off-the-clock work with strong OT rules