The NLRB Is Providing More Resources to Workers – But What Are Employers’ Rights?
Employers should be aware that the National Labor Relations Act is actively working to inform employees about their rights under that law, and not always in a neutral way. A recent initiative is a new “Know Your Rights” card series. These tri-fold cards, in English and Spanish, are available to employees to share with others in the workplace. But, unsurprisingly, they overlook employers’ rights.
Of the first two cards, one card provides information on protections for immigrant workers. It notes that employees are protected by the Act regardless of immigration status, and that the NLRB will not ask about immigration status. It also explains that employees have the right to talk about pay and unfair treatment in the workplace, vote in a union election, join a union, or strike (although it fails to note that employees also have the right to refuse to do any of those things). It further suggests that the NLRB may be able to assist workers with immigration issues related to the need for protection at a worksite.
The other card talks about Weingarten rights, which allow union members to request a representative to be present and assist the employee at any interview that the employee reasonably believes could lead to discipline. It notes that employers violate the law if they threaten or retaliate against an employee because of a request for a representative or if it proceeds with the interview without allowing the representative. More troubling, while the card notes that, at the current time, non-union employees do not have Weingarten rights, it also makes clear that the NLRB is looking for a case in which to change that.
As a refresher, and because it was entirely omitted from the card, employers should recall what their rights are under Weingarten. First, employers are not obligated to advise an employee concerning their Weingarten rights. Second, unless otherwise provided for in a collective-bargaining agreement, employees do not have an automatic right to a union representative in meetings that could lead to discipline – the employee must request the representative. Third, an employee has no right to a Weingarten representative where the purpose of the meeting is to merely convey a disciplinary decision already reached. Fourth, an employee has no right to a Weingarten representative where their belief that the meeting could result in discipline is not “objectively reasonable” – for example, where the employee was a mere witness to a physical altercation involving other employees and the purpose of the interview is merely to ascertain what the employee witnessed. Fifth, as for the degree of the Weingarten representative’s involvement, an employer may request that the representative save their questions until the end of the supervisor’s questioning. If a Weingarten representative directs an employee not to answer a question, the supervisor may remind the employee that their failure to answer the question may amount to insubordination and the lack of an answer will be considered in the employer’s investigative conclusions.
If an employee has the right to a Weingarten representative and has requested such a representative, here are the employer’s options. First, the employer may grant the request. Second, the employer may deny the request and end the interview (and make a decision based on the information it has without the interview) – the employer may not, however, discipline the employee solely because they requested a Weingarten representative. Third, the employer may give the employee the choice of continuing the interview without a union representative or ending the interview. If the employee chooses the former option, the employer may continue the interview without the presence of a Weingarten representative.
Unsurprisingly, this card omits employers’ rights related to Weingarten. In addition, the Board has nuanced rules in situations where employees request a Weingarten representative in the context of drug and alcohol testing. If faced with such a request, we advise that you reach out to counsel immediately.
