United States: Disciplining Non-Union Employees

The National Labor Relations Board decided on July 10, 2000 to reverse 12 years of precedent in the Epilepsy Foundation case. The NLRB ruled that employees who are not unionized have the right to have a co-worker present during a disciplinary interview. This article will explain the ruling and provide some guidance.

Whenever the employee believes that an interview may result in disciplinary action, the employee’s request to have a co-worker present must be honored.

The employee was directed to meet with two managers to discuss two memos written by the employee that were critical of his supervisor. The employee refused to attend the interview unless he could have a co-worker present. After the request for a co-worker was denied, the employee continued to express his opposition to meeting with his supervisor. The next day, the employee was fired for gross insubordination – refusing to meet the previous day. The NLRB ruled that the employee’s discharge was a violation of the Section 8(a)(1) rights guaranteed in the National Labor Relations Act to act in concert for mutual aid or protection.

Employers have the unilateral right to deal directly with their employees in the absence of a collective bargaining agreement with a union. Enforcement of this rule may also force an employer to forego conducting an interview with the employee and result in the employer not hearing the employee’s side the story. Unions have a legal obligation to represent the interests of their members, but merely having a co-worker present during an interview does not necessarily help the employee.

1. Follow your normal policies and just conduct your normal investigation, including the interview of the employee. The employee must first request the right to have a co-worker present. If there is no request, then there is no obligation on behalf of the employer to offer the employee the opportunity to have someone else present.
2. The right to have a co-worker only occurs when the employee reasonably believes that the interview might end in discipline. If the purpose is for some other reason, such as conducting an annual appraisal, then the employee has no right to ask for a co-worker to sit in.
3. While it is up to the employee to decide if the interview will result in discipline, the employer can short circuit that issue by telling the employee that no discipline will result from the interview. Then the employee has no reason to believe that discipline will occur.
4. The employer can conduct any investigation as long as the employee is not interviewed. Other witnesses can be interviewed, records can be reviewed, etc. The rule does not apply to investigations by the Police or other law enforcement agencies.
5. If the employer refuses to allow a co-worker to attend the interview, and the employee refuses to be interviewed, but the employer does not fire the employee for refusing to participate in the interview, then the employee has no damages. There may be a technical violation, but no harm.
6. Employers are not prohibited from conducting non-interview investigations of the employee. For example, the employer could ask the employee to complete a written statement, report or form. The employee could be asked to review the company’s report and sign it if accurate.
7. The employee is only allowed to have a co-worker with him at the interview. Other witnesses are not permitted.

Your thoughts and comments on the NLRB’s new decision will be appreciated. Feel free to call if you have any questions, wish to update your Employee Handbook or company policies, or need more guidance.