All information offered on this page is strictly advisory in nature. Please contact your business representative for full, accurate information regarding YOUR situation and workplace.
THE WEINGARTEN RULE
An employee has a right to be represented during an investigatory interview. A supervisor or human resources representative normally conducts this interview. Should you be called into such an interview, you should immediately request your Union to be present.
What is an investigatory interview?
An investigatory interview is any meeting that may lead to disciplinary action against you. This is a meeting when a supervisor questions an employee for the express purpose of obtaining information, which could be used as a basis for discipline. Or any meeting where a supervisor or HR asks an employee to defend his or her conduct. Investigatory interviews may relate to subjects such as: excessive use of Company equipment, accessing or viewing inappropriate internet sites (pornography, sexually explicit, or hate sites) on Company premises or use of Company equipment, absenteeism, drinking fighting, poor attitude, violation of safety rules, accidents, drugs, insubordination sabotage, work performance, damage to Company property, falsification of records, lateness, theft, or any violation of work rules or procedures.
What do you do if you are called into your supervisor’s (or HR) for a meeting and the meeting appears to be investigatory?
Ask that the meeting be ended until you can speak with your Business Rep. and have them present at the meeting. Be clear and to the point in your request for union representation. You cannot be punished for making this request.
What are the Company’s options after you make such a request?
The Company can either 1) grant the request and stop the meeting until a union representative arrives; 2) deny the request and end the interview immediately; or 3) give the employee the choice of either having the interview without representation or ending the interview immediately.
What happens if the supervisor (or HR) denies the request for union representation and continues to ask questions?
He or she is committing an unfair labor practice and the employee has the right to refuse to answer the questions. The employee cannot be punished for such a refusal. Please keep in mind, this is a stressful situation. The employee should remain absolute, but continue to conduct him/herself in a professional.
THE LOUDERMILL RIGHT
Loudermill mandates that public employees are entitled to an oral or written notice of charges or allegations made against them and that an explanation be given outlining the employer’s evidence.
Within the Loudermill decision, are elements that reinforce how important it is for employees to have notice, disclosure and the opportunity to defend themselves against charges in which the employer may decide to use severe disciplinary sanctions, including the loss of employment. The Loudermill Right is based on these five components:
1. Property Right — Non-probationary public servants are considered to have a property right to their employment and can only be terminated for cause, a standard also applying to other levels of discipline, but not to reprimands.
2. Due Process — If one’s employment is a property right, the employee must have proper notice and an opportunity for a hearing, before he or she is deprived of any significant property right.
3. Employee’s Case — There are limits to the employee presentation during a Loudermill hearing. The meeting usually involves a manager from the human resources department and one at the highest program administrator level. The employee does not have an opportunity to cross-examine other people involved, or who may have given a witness statement in the investigation. Prior to the hearing, the employee needs to prepare their case presentation with the union staff. This will include decisions about the role each will play. The statements and information are important to emphasize as mitigating information.
4. Before Final Decision — Following the common understanding of due process, the hearing, or written explanation from the member must occur prior to the final decision on discipline (termination, suspension or demotion). Even if the original letter cites termination as the contemplated decision, the hearing is a unique and extremely important opportunity to present all rationale for the employer to dismiss, an erroneously-based investigation and therefore, its contemplated discipline. Or, at the least, the employee may provide such explanation that will cause the original sanction to be reduced.
5. Hearing Check Against Mistakes — The Loudermill “hearing” sounds like more of a formal process than it usually is. The courts use this hearing to fulfill due process rights. The goal of the meeting is to verify truth of the allegations, and whether or not the anticipated level of discipline can be substantiated and then justified.
THE GARRITY RIGHTS
Garrity Rights protect public employees from being compelled to incriminate themselves during investigatory interviews conducted by their employers. This protection stems from the Fifth Amendment to the United States Constitution, which declares that the government cannot compel a person to be a witness against him/herself.
For a public employee, the employer is the government itself. When questioned by their employer, they are being questioned by the government. Therefore, the Fifth Amendment applies to that interrogation if it is related to potentially criminal conduct.
Garrity Rights stem not just from the Fifth Amendment, but also the Fourteenth Amendment. While the Fifth Amendment could be said to apply only to the federal government, the “equal protection” clause of the Fourteenth Amendment makes the Fifth Amendment applicable to state, county, and municipal governments as well (determined by the United States Supreme Court in 1964’s Malloy v. Hogan)
Garrity Rights originate from a 1967 United States Supreme Court decision, Garrity v. New Jersey.