Investigatory Interviews & Weingarten Rights

Employees and Supervisors have meetings and discussions every day. Most of these interactions aren’t a cause for concern. Sometimes, however, the nature of the meeting gives rise to specific employee rights. Departments always have the right to order an employee to attend a meeting. If the employee will be asked questions, the answers to which could lead to discipline, then the employee has the right to have a representative of their choosing with them. If that employee is a CASE Member, then they can request professional representation from CASE’s experienced staff.  

The Right to A Representative

The right to have a representative present comes from case law established in NLRB v. Weingarten (420 U.S. 251 (1975)).

In the context of formal investigatory interviews, most departments know their obligations under Weingarten and will provide official notice to an employee directing them to appear for an interview and letting them know whether they are the subject of an investigation or merely a witness in an investigation. The distinction is important.

• Subjects of an investigation have the right to have a representative present. CASE will provide professional staff upon request only to CASE Members who have been called to an interview as the subject of an investigation.
• While some Departments will allow witnesses to bring a representative along with them, CASE does not provide professional staff to witnesses called to an interview. This is because participating in a witness interview could create a conflict that would impede CASE’s ability to represent the subject in an investigation – which is our primary duty if the subject is a member. CASE staff is happy to provide general advice to witnesses, however, to better prepare them for what to expect in interviews.

If a colleague has been called to an interview as the subject of an investigation, connect them to CASE staff right away. If they have been called as a witness, let them know that CASE staff can provide them with guidance upon their request.

Of course, employees may take anyone of their choosing with them. But expert, professional representation is a benefit of CASE Membership – so why not take advantage of it?

Notice Requirements

A recent PERB decision confirms that employees – and CASE – have the right to receive detailed enough notice of the nature of the investigation into and allegations against an employee-subject for that employee to receive meaningful representation from CASE.  This is another reason to connect anyone receiving an order to appear for an interview with CASE staff as soon as possible: CASE staff can evaluate the notice to ensure it is sufficient under the Dills Act, regulation, and PERB precedential decisions.

Other Dangers

If a member is called to answer questions that could subject them to criminal liability as well as adverse employment action, CASE staff can help the member’s constitutional rights are protected by ensuring they receive a guarantee of immunity before being compelled to answer questions. An employee’s Fifth Amendment Rights still exist within the employment context, but can be in tension with their obligation to answer questions to avoid a charge of insubordination. It’s important that any record of the interview clearly confirm the employee’s invocation of their right against self-incrimination and the department’s direction to answer questions nonetheless.

Interview Advice 

For witnesses nervous about appearing at interviews, encourage them to contact CASE. While CASE staff will not be able to discuss the subject of the investigation, we can provide general guidance on the basics. Most of this advice applies equally to subject and witness alike:

• Listen carefully to the question being asked and answer only that question.
• Do not guess at what is being asked – if you don’t understand the question, ask for clarification without offering your interpretation for confirmation.
• Don’t guess. Ever.
  • • If you don’t know the answer to the question, then say “I don’t know.”
    • If you don’t remember the answer to a question, then say “I don’t remember.”
    • If a record or document exists somewhere with the answer, say “I would be happy to follow up with the email/meeting invite/page from my calendar with the date.” Don’t guess at a detail when the answer exists somewhere.
    • Guessing can subject an employee to adverse action later because inconsistent answers can be interpreted by the department as evasion or dishonesty. Dishonesty is the hardest charge to overcome because it taints the employees credibility just by virtue of existing.
    • If you feel tempted to start your answer to a question by saying “well, maybe I…” or “I think I ….” Or “I usually . . .” or “it’s possible” STOP! Those equivocating words mean you either don’t know or don’t remember the answer to the question being asked. In which case the correct answer is “I don’t know” or “I don’t remember.”

Meetings Where No Right To A Representative Exists

Some meetings that are negative or critical in nature do not give rise to representation rights, such as:

• Meetings where a supervisor reviews a Performance Evaluation with their subordinate that includes critical information or “needs to improve” ratings.
• Counseling meetings or meetings where a Letter of Instruction, Counseling Memo, or Corrective Memo is presented.

A good rule of thumb for determining whether the right to a representative exists is whether the discussion focuses no past or future conduct:

• If a supervisor wants to inform an employee of past errors and direct changes to future conduct, there is no right to have a representative present.
• If a supervisor wants to ask an employee WHY or HOW they made prior decisions, the employee should be offered the opportunity to have a representative present.

When Meetings Change

Sometimes a meeting starts as a counseling session or regular supervisor/subordinate meeting and takes a turn.

If at any point in a meeting, the supervisor begins asking the employee questions the answers to which could subject the employee to adverse action, the employee should politely, but firmly, stop the meeting, and request to have the opportunity to contact CASE and reschedule the remainder of the conversation later.