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Employee rights expanded in ruling

March 1, 2004 By    

The National Labor Relations Board has reversed 12 years of precedent in a decision on the rights of non-union employees to have a representative present during meetings that may result in disciplinary action.

The U.S. Supreme Court first afforded workers the right to representation at investigatory meetings in a 1975 court decision. But that case dealt only with union settings. The NLRB has since maintained that non-union workers were not entitled to similar representation.

In a surprise move, the ruling was extended to cover non-union workers. Many non-union employers remain unaware of this change and the resulting rights afforded their employees.

Under the decision, an employee has the right to request a representative be present at investigatory interviews that the employee believes may result in disciplinary action. For non-union workers, this representative is most likely a co-worker; supervisors, human resource officials and attorneys cannot serve.

The employee may ask for representation in a work area or in the interview itself. If the requested representative is unavailable for personal or other reasons for which the employer is not responsible, an employer is not obligated to suggest an alternative representative. It is the employee’s right and obligation to properly request an alternative representative.

In the absence of a request, an employer is not obligated to provide a representative or even advise an employee that he or she has this right. Further, an employee may waive his or her rights by failing to make a proper request or by participating in an interview without a representative.

Representation is required only at meetings that may result in disciplinary action. Employees do not have this right if the meeting simply enforces a previously made disciplinary decision. Meetings at which an employer informs an employee of a disciplinary action and then seeks facts or evidence to support that action or tries to have the employee admit wrongdoing may be subject to the NLRB rule.

If an employee requests representation, the employer has several options: Grant the request, halt the interview permanently, postpone the interview until the representative arrives, or offer the employee the choice of continuing without representation or ending the interview.

Employers do not need to justify a refusal to permit representation and may continue with an investigation without an employee interview. An employee may only leave an interview if the employer denies his or her right to a representative and requires the employee to continue the interview. Workers cannot be disciplined for requesting representation.

Prior to an interview, an employee may consult with the representative to familiarize him or her with the employee’s circumstances. An employer must disclose at least a general statement on the subject matter of the interview. An employer need not reveal its case nor any specific information regarding the misconduct.

During the meeting, a representative may assist by counseling the employee, attempting to clarify facts, or suggesting other employees who may have knowledge of the incident.

Violating these rights could result in several remedies. If an employee is discharged for asserting his or her rights, the NLRB may order reinstatement, back pay and expungement of disciplinary records. It may also require an employer to post a cease-and-desist order acknowledging that it has violated the National Labor Relations Act and agreeing that it will halt future violations. If an employee is suspended or discharged for cause and an employer’s only violation was denial of representation, only a cease-and-desist order may be imposed.

Although a non-union employee’s right to representation at disciplinary meetings is clear, the exact scope of such rights remains somewhat uncertain. I encourage you to consult your lawyer concerning the applicability of the decision to your particular situation.

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