In the Epilepsy Foundation case, two employees sent a memo criticizing their supervisor. Management asked to meet with one of the employees and the criticized supervisor. The employee requested the presence of the co-worker, and, when management refused the request, the employee refused to attend. The following day, the employee was fired for gross insubordination because of his refusal to participate in the meeting. The NLRB determined that a non-union employee had the same right as union employees and thereby overruled a 12-year precedent. The NLRB held that federal labor law protects the rights of employees, whether unionized or not, to act together for their mutual aid or protection. The NLRB therefore found that the employer’s termination of the employee for his refusal to attend the meeting without his co-worker was unlawful, and the employee was entitled to reinstatement and back pay.
Compliance with this holding could easily result in delays in employer investigations, contrary to the requirement in some cases, such as in sexual harassment investigations, that employers investigate allegations promptly. Care should be taken to make certain that cases requiring prompt employer investigation and action are not unduly delayed because of the invocation of this right to have another employee present. Issues may also arise as to the privacy of the employee(s) under investigation.
Here are some tips for employers in this fast-changing area:
The employee must request co-worker representation. The employer is not (yet) required to advise employees of this right.
A right to have a co-worker present applies only when the employee reasonably believes the interview might result in disciplinary action. The test is subjective. It doesn�t matter that the employer tells the employee that he or she is not in danger of being disciplined, as long as the employee reasonably believes discipline could occur. The definition of �discipline� is also a question. If, as a result of a meeting, a document is placed in an employee�s file, that could be considered both investigatory and disciplinary.
If the meeting is being held to issue discipline already decided upon and not to interview the employee, there is no right to representation.
In the event an employee requests a co-worker’s presence, the employer can cancel the meeting and make a decision without the employee’s participation; however, this is not without its risks. An employer could lose a discrimination or wrongful discharge case because it did not give the employee a chance to tell his or her story.
The right to request the presence of another only applies to a co-worker. It does not appear to require the presence of a spouse or a lawyer.
To protect privacy rights, the employee requesting a co-worker’s presence should sign a waiver stating that they have requested and consent to the co-worker’s presence. This right only applies to employees not to managers or supervisors.
The NLRB has taken this approach before. In 1982, it extended this right to non-union employees, but reversed itself three years later. This case is presently on appeal to the Circuit Court, but for now, the Board’s interpretation is still good law in every state. Stay tuned.
– Cynthia Dixon