The Weingarten right is a right is derived from the Supreme Court’s 1975 Weingarten decision where the court recognized union employees’ rights to representation at investigatory interviews. The National Labor Relations Board now takes the opposite position and holds that the right to representation at investigatory interviews applies equally to union and non-union employees.
Weingarten rights includes the right to have a coworker present at an investigatory interview that the employee reasonably believes might result in discipline. Weingarten rights must be invoked by an employee before an employer has any corresponding obligations. An employee must request the presence of a coworker at an investigatory interview.
The portion of the relevant federal statute provides that:
"(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at -
- any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment; or
- any examination of an employee in the unit by a representative of the agency in connection with an investigation if -
- the employee reasonably believes that the examination may result in disciplinary action against the employee; and
- the employee requests representation.
(3) Each agency shall annually inform its employees of their rights under paragraph (2)(B) of this subsection."
On June 15, 2004, The National Labor Relations Board ruled that nonunionized employees are not entitled under Section 7 of the National Labor Relations Act to have a coworker accompany them to an interview with their employer, even if the employee reasonably believes that the interview might result in discipline. This was a reversal of the July 2000 decision of the Clinton Board that extended Weingarten Rights to nonunion employees.