In NLRB v. Weingarten, the United States Supreme Court ruled that the National Labor Relations Act guarantees an employee's right to the presence of a union representative at an investigatory interview in which there is a reasonable risk of disciplinary action.   These protections have become known as "Weingarten rights." Under existing law, Weingarten rights extend only to union employees.

Upholding an Administrative Law Judge's ruling,the National Labor Relations Board (NLRB) confirmed on June 25, 2012 that an employee need not explicitly request union representation at an investigatory meeting to invoke his Weingarten rights. The NLRB's decision also underscores that an employee's history of work performance issues and previous conflicts with a supervisor may give rise to an employee's reasonable belief of possible discipline when summoned to an interview with his employer.

Jerome Ivery, an employee of a die-casting company, was called into a meeting with senior managers for a verbal warning about overstating his work hours. The managers proceeded to ask Ivery about his performance, his demeanor, and his disciplinary history at the company. When Ivery asked if he needed "to get somebody else in here," his manager replied that it would not be necessary, and resumed the discussion. After the discussion began to address Ivery's disciplinary record, he asked again if he needed "somebody" to be present for the meeting. The manager ignored the question, and the meeting ended with no disciplinary action taken toward Ivery.

Ivery claimed his Weingarten rights were violated when the managers disregarded his requests to have a union representative present at the meeting. The NLRB ruled that Ivery's question whether he "needed to get somebody else in here" was sufficient to serve as a request for union representation.   A request for union representation triggers Weingarten rights if it is made with a "reasonable belief" that the interview could lead to discipline.

In Ivery's case, the NLRB found that an "investigatory interview" began when the discussion turned to Ivery's disciplinary history and interaction with his supervisor. Although the manager's remark that union representation was not necessary may have been intended to mean that Ivery would not be disciplined, the Board found that without an explicit disclosure to that effect, Ivery was still entitled to his Weingarten rights.

Employers are responsible for identifying and complying with requests for Weingarten representation. Call us if you plan to schedule a meeting with an employee and anticipate Weingarten representation may become an issue. And whether or not your employees are represented by a union, we're always happy to help you assess your performance review process and disciplinary procedures. 

DOL Cautions Against Premature WARN Notifications     

The Budget Control Act of 2011 requires Congress to pass a deficit reduction bill with at least $1.2 trillion in cuts by year-end. If Congress fails to act, automatic across-the-board spending cuts (known as "sequestration") will become effective on January 2, 2013.

Should the automatic cuts occur, federal agencies will be forced to suspend, scale down, and cut millions of dollars in contracts. The Defense Department would undergo some of the most significant spending reductions. A study by the Aerospace Industries Association projected sequestration would result in 2.14 million job losses and a $215 billion decrease in the GDP.

For businesses that derive work from federal contracts, sequestration would mean a severe decline in business, possibly necessitating plant closures and layoffs. Such reductions in force may trigger obligations under the Worker Adjustment and Retraining Notification (WARN) Act. The WARN Act mandates that employers give employees 60 days advance notice before mass firings. Notices are not required, however, in the event of "unforeseeable business circumstances." Under this exception, if an employer encounters a drastic decline in business that could not be reasonably foreseen, such as cancellation of a major customer order, the employer will not be subject to WARN Act penalties if notices are not provided in advance of a closure or layoff.

The threat of sequestration and ensuing lay-offs prompted the Department of Labor (DOL) to issue a letter July 30, 2012 cautioning employers against sending out premature notifications. The DOL reasoned that given the high level of uncertainty over sequestration, any resulting loss of business could constitute unforeseeable circumstances and exempt employers from the 60-day advance notice rule. According to the Department of Labor, sending out WARN notifications in anticipation of sequestration, or before specific contract terminations or cutbacks, would inevitably risk covering too many employees and be contrary to the purpose of the act.

We're not foolish enough to predict the fate of the federal budget, but keep in mind that an employer's WARN Act obligations will depend on the facts and circumstances of any given lay-off or plant closure. It is unclear whether a federal court would give deference to the DOL letter in the event of a WARN Act claim. Call us if you have questions about how the WARN Act might apply to a prospective lay-off. Read the DOL's letter here.