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IMPORTANT
- EMPLOYMENT LAW UPDATE -
EMPLOYERS MAY HAVE TO PROVIDE
TWO SEATS AT INVESTIGATORY MEETINGS: ONE FOR THE EMPLOYEE AND ONE FOR A CO-WORKERSeptember 8, 2000
The National Labor Relations Board ("NLRB") has granted non-union employees the right to have a co-worker present at many investigatory meetings. Although there is a chance that this ruling will ultimately be reversed by the federal appeals court or by the United States Supreme Court, as of now it constitutes the governing law for most private employers.
The NLRB issued its decision in a case called Epilepsy Foundation of Northeast Ohio. The case originated in memos from two employees, challenging and criticizing their supervisor. When one of the employees was ordered to meet with the executive director and the employee's supervisor, he requested that a co-worker be present. The company refused that request, sent the employee home, and fired him the next day for insubordination, based in part on his refusal to attend the meeting on his own. The NLRB ruled that this discharge was unlawful.
In finding that the Epilepsy Foundation violated federal law, the NLRB used the Epilepsy Foundation case as an opportunity for expansion of so-called "Weingarten rights" from the unionized to the non-unionized workplace. Those "Weingarten rights" flow from a 1975 decision of the U.S. Supreme Court, which held that an employer would violate the National Labor Relations Act by denying an employee's request for a union representative's presence at an investigatory interview, if the employee reasonably believes that disciplinary action might result. In Epilepsy Foundation, the NLRB has used its broad statutory powers to declare that "the Weingarten right includes the right to request the presence of a co-worker at an investigatory interview in a nonunion setting." According to the Board, the National Labor Relations Act grants all employees the right to engage in "concerted activities for the purpose of mutual aid or protection," which includes an opportunity to act together in order to ensure that their employer does not impose punishment unjustly.
Unless it is overturned, the Epilepsy Foundation ruling means that private employers would take a risk by refusing an employee's request for co-worker attendance at an investigatory meeting. All employers should keep in mind, however, that the decision only applies to meetings if: (1) they are truly investigatory in nature; and (2) the particular employee would reasonably believe that he or she will be disciplined as a result.
If a meeting is scheduled to investigate an employee, and if that employee requests the presence of a co-worker, the employee should not be forced to attend such a meeting alone. One choice under Epilepsy Foundation is certainly to allow the co-worker to attend, as long as that co-worker does not act inappropriately or interfere with the investigatory or disciplinary process. Needless to say, the employer also should make sure to have at least two of its own representatives present, in order to ensure that the meeting is conducted professionally and that it will be accurately portrayed later on. Another choice is to not have a meeting with the employee and to investigate the matter through other methods, although this could backfire if the employee later claims to have been disciplined without a chance to speak his or her mind.
The Epilepsy Foundation ruling raises at least one troublesome question that the ruling did not even consider: what if the employer is investigating sexual harassment and is obligated to keep the investigation as confidential as possible? What if the alleged harasser asks for the presence of a friendly co-worker at the investigatory meeting, even though that co-worker has nothing to do with the incident at issue, and no relationship to the investigation? Of course, this would not be the first time that employers are caught between a "rock and a hard place," but in such a situation we suggest that employers take every reasonable precaution to protect the confidentiality of the sexual harassment investigation.
If you are interested in receiving a copy of the Epilepsy Foundation decision or wish to discuss this case, please do not hesitate to call or e-mail John Letizia or Andrew Cohen at Letizia, Ambrose & Cohen, P.C.(1)
1. The representations made in this letter are the analysis of the law offices of Letizia, Ambrose & Falls, P.C. This information and analysis are provided gratuitously and for informational purposes only. You are encouraged to consult with the appropriate legal counsel prior to relying on this information or analysis.