Non-Unionized Employees Entitled To Representation During Disciplinary Meetings

The National Labor Relations Board (“The Board”) recently reversed long-established case precedent and held that non-unionized employees are entitled to have a representative or coworker present at an investigatory interview which the employee reasonably believes might result in disciplinary action. This legal principle, known as Weingarten rights, was first recognized for unionized employees in the landmark U.S. Supreme Court case, NLRB v. Weingarten, 420 U.S. 251(1975). The Board has, for numerous years, refused to extend Weingarten rights to non-unionized employees.

The Board reversed itself after re-examining Section 7 of the National Labor Relations Act. Section 7 affords all employees the opportunity and right to act together in concert for mutual aid or protection, which includes concerted activities designed to prevent employers from imposing unjust disciplinary actions against employees. Section 7, unlike other sections of the Act, is not limited to unionized employees. Because Section 7 clearly protects the rights of all employees—unionized or not—to engage in concerted activity for mutual aid or protection, the Board concluded non-unionized employees, like their unionized counterparts, should be entitled to assert Weingarten rights during investigatory interviews or meetings.

In view of this decision, employers should exercise extreme caution and consult legal counsel before declining an employee’s representation request. Employees wrongfully terminated in violation of their Weingarten rights may obtain reinstatement and recover backpay and other lost benefits.