How Unions Can Help in a Workplace Investigation

During questioning in a workplace investigation, workers may feel like their employer is targeting them for firing or discipline. Even if the worker didn’t do anything wrong, an investigation interview is uncomfortable. Union workers have the right to ask for a union representative during questioning.

Understanding your union protections during an investigation can help protect your employee rights. For up-to-date information about union protections during an internal investigation, talk to a local employment and labor law attorney.

The Role of Unions in Workplace Investigations

In workplace investigations, employers gather relevant information through interviews. In many jobs, employees must participate in workplace investigations or face disciplinary action. However, this may be different under your union’s collective bargaining agreement.

Collective bargaining agreements detail worker rights, working conditions, and benefits. The agreement will generally have protections and procedures for investigations and disciplinary decisions. The role of your union in any investigation depends on the individual labor agreement.

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Types of Workplace Investigations

Employers conduct internal investigations for various reasons, such as alleged violations of workplace policies, criminal allegations, or violations of employment law. Types of workplace investigations may include:

• Misconduct by employees
• Fraud or embezzlement allegations
• Workplace safety and OSHA complaints
• Workplace violence threats
• Sexual harassment complaints
• Hostile work environment
• Employment discrimination

Employers may become aware of workplace issues from various sources, including anonymous reports, coworker complaints, law enforcement, or charges filed with a government agency.

The investigation process generally involves gathering evidence, interviewing workers, and an investigation report on the results. Depending on the outcome, the employer can take disciplinary action against workers who violate the law or workplace policies.

Protecting Employee Rights During Investigations

Union workers have the right to have a union representative during investigatory interviews. Employers cannot punish or retaliate against workers for asking for their union representation rights. The U.S. Supreme Court upheld these rights in NLRB v. J. Weingarten, Inc. Known as Weingarten rights, union workers have the following legal protections:

1. The worker must make a clear request for union representation before or during an interview
2. The employer must grant the request, deny the request and stop the interview, or give the employee a choice of these two options
3. If the employer denies the request for a union rep and continues the interview, it is an unfair labor practice, and the employee can refuse to answer questions

Your individual HR investigation rights will depend on your union contract. Common worker protections include an opportunity to tell your side of the story, an impartial decision maker, and access to your personnel records.

How Unions Provide Support and Representation

Unions generally provide support and representation to workers during a workplace investigation. The union rep is a witness to what takes place during the interview and can give the employee advice about their union protections. Union reps can ensure the investigation is fair and neutral.

Many union employees do not know all their legal rights and protections. A union representative can explain what rights a worker has during an investigation. Many of these rights are negotiated in the collective bargaining agreement.

For example, many union agreements provide stronger privacy protections than those that apply to non-union workers. Worker privacy during an internal investigation may prohibit:

• Searching your personal property without consent
• Recording phone calls
• Asking for personal passwords or unlocking your phone
• Demanding health records
• Monitoring your activity outside of work

Employer Investigation Rules and Policies

Many employers have investigation confidentiality policies. The employer may tell the worker they cannot talk about an ongoing investigation. There are good reasons for confidentiality in workplace investigations, including:

• Ensuring integrity
• Preserving evidence
• Encouraging the reporting of workplace issues
• Protecting sensitive personal information

However, overly broad confidentiality policies may limit worker rights. If an employee could reasonably believe that investigation rules have a coercive force, the NLRB General Counsel will generally find the rule to be presumptively unlawful. An employer can try to rebut that presumption by showing that the rules advance a legitimate and substantial business interest not available under a narrower rule.

Whether investigation rules are lawful or not depends on the situation. The NLRB can review rules on a case-by-case basis. If you think workplace investigation rules restrict your union rights, talk to your union rep or contact a labor lawyer.

Legal Advice About Workplace Investigations

With workplace investigations, your employer generally gets legal advice from an attorney or general counsel. To protect your rights, you should consider getting legal advice. You can ask to have your attorney present during any investigative interviews. Your own legal counsel will represent you and act in your best interests. For legal advice about your rights during a workplace investigation, contact an experienced employment and labor lawyer.