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Updated on 2004/09/08
By: Richard R. Renner

A federal court of appeals expanded the rights of workers to have a coworker present when your boss is questioning you. These rights are called Weingarten rights, named after the first Supreme Court decision to recognize them. NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).

Weingarten rights kick in whenever a supervisor asks a worker for information that might be used for discipline. However, workers have to ask for a coworker to be present to use these rights. The boss has no duty to tell workers about their rights. So, as a public service, we are providing the following card you can cut out and read the next time the boss asks a threatening question:

I am now concerned that this interview could lead to discipline, or affect my personal working conditions. So, I respectfully request that a coworker of my choice be present at this meeting. Until my coworker arrives, I choose not to participate in this discussion.

This statement could save your job.

If you are represented by a union, then you have a right to union representation at the meeting. However, you would not have the right to choose which union representative will be present. The union gets to pick its own representatives.

The 2001 court of appeals decision extended this protection to non-union workplaces, but only for those workers who have a right to organize a union. If you are a supervisor, a confidential employee, or security guard, then these protections will not apply to you. Also, if your employer has fewer than 15 employees, and you do not handle mail, telephones, or any other form of interstate commerce, then these rights may not apply to you. The court affirmed the 2000 decision of the National Labor Relations Board, Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92, affirmed as Epilepsy Foundation v. NLRB, 268 F.3d 1095 (D.C.Cir. 2001). Regrettably, the NLRB (stacked with Bush appointees) reversed its earlier decision in a case called IBM Corp. v. Schult, 341 NLRB 148 (June 9, 2004). The future of Weingarten rights for non-union workers now remains in the hands of federal appeals courts, and of the next president who will appoint the judges for those federal courts.

Why would you want a coworker to be present? First, a coworker's presence means you have a witness. If a dispute arises later about what the company asked, and how you responded, you will have the witness of your choice to relate what happened.

The union representative or coworker, however, does not have to be a silent witness. They are permitted to confer with you before the interview to understand what is at issue, and to give you advice to help you keep your cool. Trained union representatives will have practiced coaching workers through these difficult confrontations.

If you do not presently have a union, perhaps now is a good time to think about the benefits of a legally enforceable contract that protects you from unfair discipline. Workers still have the right to call on each other for mutual aid and protection.

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