Weingarten Rights

WHAT ARE WEINGARTEN RIGHTS?

Workers have the right, under both State and Federal Law, to have a union representative present when the employer is seeking information about the workers' conduct.  The worker must reasonably believe discipline could result.  The insistence on having a representative present is considered concerted protected activity, and the law precludes the employer from taking action against the worker for exercising this right.

What Situations Are Covered?

A meeting called by the employer to find out facts about what has happened, or to have the worker explain his/her side of the story.  This is the clearest example where the employer is “investigating.”

Where the employer requests a written answer to questions about a workers' conduct.

A meeting where the employer has not yet decided if they will take action of a disciplinary nature.

What Is Not Covered?

When the employer has decided has decided to take an action and is informing the employee of the decision.

Where the employer is transmitting instructions, training or corrections.

Where the employer has explicitly stated in advance that there will be no adverse consequences.

Where the employee initiates the discussion and in effect, waives his/her rights under the law.

The employee must assert the right to have a union representative attend.  

The employer has no obligation to inform the employee of his/her right to representation.

Once the employee raises their Weingarten Rights, what must the employer do?

     1.)     Grant the request and delay the meeting until a representative arrives and can consult with the employee.

     2.)     Discontinue the meeting.

     3.)     Permit the employee to choose to continue the interview unrepresented or forego the interview entirely.

An employee may waive his/her right.

Also, if the interview is terminated, the employer may make its decision without input from the employee.

Even under Weingarten, absent possible criminal implications, the employee has no general right to refuse to answer questions.  Such actions may, however, give rise to an allegation against the employee of insubordination.

What if the matter involves an allegation of a possible crime or neglect issue under DSS?

If the matter involves issues of a legal nature, such as a possible criminal issue or an investigation by DSS,  if you are a union member, you should notify the EAN President at once so that legal representation can be obtained through the MTA. If you are not a union member you should notify your own attorney and seek advice.

Communications between union officials and members are not privileged.

Thank you to Stevens Day, our MTA Uni-Serv rep, for this information.