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Employers May Interview Employees Without Coworkers Present In Non-Union Workplaces

Employers May Interview Employees Without Coworkers Present In Non-Union Workplaces


The Inside Perspective
(June 2004)

Reversing its own four-year-old precedent, the National Labor Relations Board (NLRB) recently ruled in IBM Corporation that non-union employees are not entitled to have a coworker present during certain investigatory interviews:

  • In NLRB v. Weingarten (1975), the U.S. Supreme Court held that unionized employees have a right to union representation at interviews that may lead to disciplinary action against them.  Such Weingarten rights were expanded by the NLRB in 1982 to include non-union employees and later overruled by the Board in 1985 and 1988.
  • In 2000, the NLRB's Epilepsy Foundation of Northeast Ohio decision again extended Weingarten rights to non-union employees, allowing such employees to have a co-worker present where they "reasonably believe" an interview may lead to discipline.
  • Now, the IBM Corporation decision, which was decided in a 3-2 vote by the five-member Board, holds that employers are not required to allow employees to have a co-worker present during interviews in workplaces that are non-union.
  • The decision was based heavily on the NLRB's recognition that an employer must be able to conduct "thorough, sensitive, and confidential" investigations in the modern workplace.
  • The decision emphasized that employers need to conduct such investigations to avoid liability under numerous federal and state laws.  For example, such laws encourage an employer to conduct a prompt and thorough investigation in response to an employee's harassment complaint.
  • Equally compelling, the NLRB recognized that, unfortunately, there have been many changes in the workplace environment, including concerns raised by incidents of workplace violence, since it decided Epilepsy Foundation.  In some instances, a confidential investigation, which might be impaired if others are allowed in investigatory interviews, may be the only chance to avoid tragedy.

TIP:  The IBM Corporation majority was based largely on a crucial point that all employers should remember:  Employers should promptly, thoroughly, and confidentially investigate instances of possible workplace misconduct, inappropriate behavior, or threats of violence.

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