Weingarten Rights: Q&A

• When an employee has a reasonable expectation that discipline may result, such as during an employer's disciplinary procedure.
• When the meeting's purpose is to investigate inadequate work performance or misconduct, and discipline may be a possible outcome.
• When the interview aims to gather facts, the employee's side of the story, or evidence to determine if discipline is warranted or to support a disciplinary decision already made.
• When the employee is required to explain or defend conduct that could reasonably affect working conditions or job security.

• When the meeting is solely for conveying work instructions, training, or necessary corrections.
• When the meeting's purpose is to inform the employee of a disciplinary decision already made, without seeking further information.
• When the employer has clearly assured the employee that no discipline will result from the meeting.
• When any discussion occurs after the employer has notified the employee of the discipline, and the employee initiates the conversation.

Possibly. These rights may apply if the employee's performance has been under scrutiny and the employee reasonably believes their job is in jeopardy. However, these rights are unlikely to apply to routine classroom observations.

Possibly, especially if the employer is seeking information from the employee or has given the employee reason to believe that discipline or termination might result from the discussion.

The test is objective. The employee's belief must be based on a reasonable assessment of the circumstances. For example, if the employer has provided any warnings or there have been allegations of misconduct, the employee may reasonably expect discipline. An employer can avoid Weingarten issues by informing the employee that no discipline will result and adhering to that statement.

If the employer solicits information from the employee after stating a decision has been made, the employee should request representation. This may indicate the employer is seeking to support or modify the disciplinary decision, which triggers Weingarten rights.

Weingarten rights are more likely to apply in a supervisor's office, but the location is not a definitive factor.

No, the employer is not required to inform employees of their Weingarten rights. It is the employee's responsibility to be aware of these rights and request representation if they believe it is necessary.

An employee should request representation as soon as they realize the meeting may lead to discipline or support a disciplinary decision. The request can be verbal and does not need to be in any specific form. It can be made at any time during the meeting, even midway through.

No, the request only needs to be made once. It is the employer's responsibility to ensure Weingarten rights are provided, even if the request is made to a lower-level supervisor.

If in doubt, the employee should request representation. The employer cannot discipline the employee for asking. Employees can also ask if the meeting might result in disciplinary action; if the answer is anything but "no," representation is advisable. It is recommended that employees consult with their union representatives whenever called to a meeting with the employer.

The employer has three lawful options:

• Grant the request and delay the interview until the representative arrives and can consult privately with the employee.
• Discontinue the interview or meeting.
• Allow the employee to choose whether to continue without representation or forgo the interview entirely.

Possibly. An employer cannot discipline or discharge an employee for refusing to waive Weingarten rights. If it is truly a Weingarten situation, the employee may remain silent or leave the meeting. However, it may be more prudent for the employee to comply with directives and later contest any resulting discipline.

The employee may choose their representative, who can be a union official or another employee, as long as it does not unduly disrupt the employer's ability to conduct the investigation. However, the choice must be reasonable, and delays should be minimal.

The general rule is that the employee may choose a representative if that person is "available." If the meeting is scheduled in advance, the representative should meet with the employee on their own time. However, if off-duty consultation is not possible, the employer must provide release time unless there's an overriding management need.

While Weingarten meetings are not bargaining sessions, the representative has the following rights:

• To be informed about the meeting's subject matter.
• To consult privately with the employee before the meeting.
• To speak and be proactive during the interview, without disrupting the meeting.
• To advise and counsel the employee.
• To provide additional information at the end of the interview.
• To take notes and bear witness to the proceedings.

No, unless the discussion has criminal implications. An employee generally does not have the right to remain silent if their Weingarten rights have been honored, nor may the representative direct the employee to remain silent.

If an employee does not request representation, they are considered to have waived their rights. The request does not need to use specific wording; it just needs to make the employer aware of the desire for representation. The employer must demonstrate that the waiver was voluntary and clear, without coercion.

An employer commits a prohibited practice if it refuses a request for representation, disciplines an employee for asserting Weingarten rights, or threatens/coerces an employee exercising these rights. The Labor Relations Commission may order the employer to rescind retaliatory actions and post a notice of the violation. Information obtained during a meeting where Weingarten rights were violated should be excluded from disciplinary actions.