As union-organized private-sector employers are well aware, in 1975, the United States Supreme Court held that under the National Labor Relations Act, a union employee is entitled to have union representation at an investigatory interview if the employee reasonably believes the interview may result in disciplinary action.[1]  Such rights are known as “Weingarten rights.”

In its decision, the Supreme Court did not address whether Weingarten rights extended to non-union employees.  In 1982, however, the National Labor Relations Board (the “Board”) held that Weingarten rights do apply to non-union employees facing investigatory interviews that could result in discipline.

Since 1982, the Board’s position on this issue has repeatedly changed based on whether the Board was a Democratic or Republican-majority controlled Board. The Board’s most recent ruling on this issue came in 2004, during the Bush Administration, when it held that Weingarten rights do not apply to non-union employees. It was widely anticipated that the Board’s 2004 ruling would be reversed yet again during the Obama Administration, but it was not. Accordingly, employers can continue to confidently deny non-union employee requests for a representative to be present during investigatory interviews. Moreover, given that President Trump is almost certain to appoint two Republicans to fill the vacancies on the Board, and reappoint the current acting chairman, a Republican, it is likely that the 2004 decision will remain the law of the land for at least the next several years.

[1]     The case is NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).