Picture this. You suspect an employee (Slick Fingers) has been stealing in the workplace for weeks. Today, multiple witnesses approach you and say they have witnessed Slick taking money from the cash register. You feel inspired by the four episodes of the “First 48” you watched the night before and thought it would be cool to interrogate Slick in one of those small rundown rooms the cops use on television. You lean back on your chair (just like the cops do), slowly sip your coffee, and begin to question. Yet, Slick doesn’t say a word. In fact, Slick too is a big fan of the First 48. Slick tells you he “know his rights” and won’t talk until one of his representatives is present. Representative?, you think. “We’re not even unionized.”
You were feeling generous that day so you were leaning towards simply suspending Slick without pay. Now that he is trying to be slick (pun intended), however, you decide to fire him on the spot for insubordination.
Good idea? Bad idea? Well, finding the answer takes some serious detective work.
Forty years ago, in the seminal case of NLRB v. Weingarten, the Supreme Court of the United States held that unionized employees had a right to be represented during an interrogation when 1) the employee requests representation and 2) reasonably believes the interrogation could lead to discipline. This is commonly referred to as “Weingarten rights.” This right, according to Supreme Court, is derived from Section 7 of the National Labor Relations Act. Since the Weingarten decision, however, the National Labor Relations Board has vacillated on the question of whether Weingarten rights apply to non-unionized employees.
In 1982, the Board held that non-unionized employees enjoyed Weingarten rights. A mere three years later, the Board reversed itself, only to reverse itself once again. In the 2000 case of Epilepsy Foundation of North East Ohio, the Board held that non-unionized employees did in fact have Weingarten rights . . . a decision that was overturned yet again in the 2004 NLRB case of IBM Corp. Dizzy yet?
At the time this blog was posted, Slick—assuming he works in a non-unionized environment—would not be entitled to Weingarten rights. But this does not mean that employers should not be conscious of the possibility of Weingarten rights in non-unionized environments. With its activist approach, don’t be surprised if the Board once again extends Weingarten rights to non-union workplaces. This cold case may be revived before you know it. (You heard it here first.)