Publications

Non-Unionized Employees do not have Weingarten Rights

September 8, 2004

A few years ago, we informed you that the U.S. Court of Appeals for the District of Columbia Circuit and 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 they believe might result in discipline. This legal entitlement is commonly referred to as Weingarten rights. Weingarten rights were, however, short-lived in the non-union workplace as the NLRB has recently reversed Board precedent and held that Weingarten rights do not apply in a non-union setting.

The Board centered its decision around an employer's legal obligation to conduct prompt and thorough workplace investigations. The Board observed that co-worker representatives in non-unionized settings, unlike union representatives, do not represent the interests of the entire workforce and lack the power to redress the perceived imbalance of power between an employer and its employees. In addition, co-workers in a non-union setting generally lack the advocacy skills necessary to facilitate the interview process or effectively represent the employee being interviewed. Further, non-unionized employees have no duty of fair representation or confidentiality like union representatives do and, therefore, have the potential to interfere with an employer's ability to conduct a confidential, effective fact-finding investigation. Taking all these factors into account, the Board determined that a non-unionized employer must be allowed to conduct its required investigations in a thorough, sensitive and confidential manner and that this can best be accomplished by permitting the employer to investigate an employee without the presence of a co-worker.

Firm Highlights

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

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...

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...

Publication

Interviewing Tips and Tricks

Event

ABCs of Employment

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

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.