Publications

Federal Appellate Court Affirms Non-Unionized Employees' Rights to Co-worker Representation During I

December 28, 2001

In an earlier issue (Summer 2000), we informed you that the National Labor Relations Board (Board), the federal agency charged with administrative oversight of the National Labor Relations Act (NLRA), had ruled that non-unionized employees, like their unionized counterparts, are entitled to co-worker representation during investigatory interviews that might result in discipline.

Many employers and their counsel hoped this decision, which was contrary to longstanding Board precedent, would be reversed on appeal. Their hopes have, however been dashed as the U.S. Court of Appeals for the District of Columbia Circuit recently affirmed the Board's decision, holding that employees in non-union workplaces have Weingarten rights to request a co-worker's presence during a disciplinary interview.

The Court based it decision on the fact the NLRA grants all employees-unionized or not-the right to engage in concerted activity for the purpose of mutual aid and protection. Permitting a co-worker to be present to observe, advise and advocate for an otherwise unrepresented employee is, in the Court's view, a form of mutual aid and protection within the meaning of the statute.

What does this ruling, as a practical matter, mean for non-unionized employers? Several things:

  • There is no right to representation if the employer is announcing a final binding disciplinary decision;
  • The employee must make the representation request;
  • The employer is not required to inform the employee of his representational rights;
  • Once a representation request is made, however, the employer must inform the employee and his chosen representative of the interview agenda;
  • The employee is entitled to a reasonable amount of unpaid time to consult with his representative before the interview;
  • The representative may actively assist and counsel the employee, but may not disrupt or obstruct the interview.

Firm Highlights

Publication

ADA Accommodations that Come with Fur and a Tail

Boa constrictors in the workplace?  Do we have to accommodate all employee pets?  Join HR attorneys Kevin Mosher and Laura Alaniz for a fun and informative discussion on pets in the workplace.   

Publication

Is Sexual Orientation Discrimination Unlawful? Supreme Court to Decide!

Listen to HR attorneys Kevin Mosher and Stephanie Rojo discuss sexual orientation discrimination and transgender discrimination issues and the exciting cases before the Supreme Court.  Will SCOTUS find that federal law protects employees and...

Event

Reviewing and Previewing: 2019 & 2020 HR Laws and Hot Topics

It seems every year more and more critical “stuff” happens to keep HR professionals busy and always learning.  2019 was no exception and 2020 won’t be either.  In this 1-hour webinar we will review...

Publication

Flextime in the Workplace

Is flextime right for your office? How do you keep confidential information confidential when employees are working off site? Listen as Kevin Mosher talks to Bill Kelly, HR Director of Vinco, Inc., about piloting...

Publication

Paid Sick and Safe Leave

When you think of Texas do you think of mandatory paid time off laws? How would Paid Sick and Safe Leave affect your HR policies? Join Kevin and Erin McNamara as they discuss this...

Publication

The Trifecta: ADA, FMLA, and Workers Compensation

A look into ADA, FMLA, and Workers Compensation from both the HR and Risk Management side. How do they work together? Listen as Kevin and Senior Risk Manager of Patterson Companies, Maggie Hobbs discuss...

Event

ABCs of Employment

Experience

Fifth Circuit Decision Secured In Civil Rights Case

Dallas partner John Ross, obtained a favorable decision from the Fifth Circuit Court of Appeals on behalf of his clients, El Paso Hospital District and two of its nurses, on civil rights, constitutional, and...

Publication

Interviewing Tips and Tricks