In 1975, the U.S. Supreme Court ruled that the National Labor Relations Act gives workers the right to union representation during an interview that the employee reasonably believes could lead to discipline (NLRB v J. Weingarten, Inc). Known as "Weingarten rights", this ruling continues to play a crucial role in unionized workplaces.

When do Weingarten rights apply?

Weingarten rights apply at an investigatory interview with management (like your supervisor or HR). An investigatory interview occurs if: management questions you to obtain information and you have a reasonable belief that your answers could be used as the basis for discipline against you. Weingarten rights do not apply at routine meetings (like performance reviews, regular evaluations, asking for a raise, etc) or meetings with management where no questions are being asked that could result in discipline.

Weingarten rights only apply to the person being disciplined or investigated; you may be asked questions about a colleague that could lead to their discipline. In this scenario, you do not have the right to Weingarten representation and are required to answer management's questions (if you choose not to respond, then you might need your own Weingarten rep).

How to invoke your Weingarten rights

The employee has to actively assert their rights - management does not have to tell you that you have a right to representation. You can do this before or after the meeting has started by saying something like:

“If my responses to these questions could lead to discipline or termination, I respectfully request union representation”

If management tells you that this is not an investigatory interview, be sure to document that. Otherwise, management should end and reschedule the interview or “reasonably delay” questioning until the union representative arrives. You cannot delay an interview indefinitely but you can loop in your union representative on scheduling with management. If management proceeds without representation, an unfair labor practice (ULP) may be filed.

Acting as a Weingarten rep

Typically, a shop steward or union staff rep will act as a Weingarten rep but it can be provided by a fellow union member (a co-worker, not just any union member). Non-union co-workers, private lawyers, personal friends and family members are not able to act as a Weingarten rep.

This can be a nerve-racking process so you might find it helpful to review role plays and instructional videos like this OPEIU shop steward training or this Labor Notes webinar.

Before the meeting:

• Meet (privately) prior to the meeting
• The rep should clearly explain their role to the employee, something like: “My primary role is as a witness and to take detailed notes. I will ask for a break if it gets heated and we will debrief afterwards”
• Inform appropriate union staff that the meeting is happening
• Recommend another representative if there is a conflict of interest (like if it’s an issue within your team that you were involved in)

During the meeting:

• Take detailed notes
• Prevent harassing or intimidating questions
• Request that questions be clarified but don’t tell the employee not to answer questions or to lie
• Request breaks, particularly if it is getting heated
• The union rep is an advocate for the employee, but this is not a grievance meeting. Your goal is to get as much information as possible and then form a game plan, not to prove or disprove management’s claims.
• The person being investigated should try to remain calm and answer questions as succinctly as possible (no need to speculate or give additional info)

After the meeting:

• Debrief privately with the member
• Store detailed notes in appropriate place (with the union committee or staff rep)
• Expect to be available (or provide transition) for subsequent meetings until the issue is resolved
• Check in directly with the member involved before sharing information about the meeting

You gotta fight for your rights!

It’s not easy to invoke Weingarten rights. People are sometimes embarrassed or worried that “involving the union” will escalate the situation. If there is potential discipline in your future, it’s better to have representation from the beginning. Particularly in a newly unionized workplace, Weingarten rights may be totally new or foreign. Union members can normalize a culture of exercising rights and representation; just putting up Weingarten rights flyers around the office can start to shift the culture away from individual isolation towards collective support and transparency.

Remember: you're not alone when you're in a union!