Recently, the National Labor Relations Board (the “Board”), the government agency that administers union laws, held that employees in nonunion workplaces no longer have a right to request that a co-worker be present in an investigatory interview that the employee reasonably believes may lead to disciplinary action.  Known as the Weingarten right, named after the employee in the case from which it arose, it originally only applied to union workplaces.  But the Board has gone back and forth over the years expanding the right to nonunion workplaces and then limiting it to union workplaces.  In 2000, they again expanded it to nonunion workplaces in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000).  But this past June, in IBM Corporation, 341 NLRB 148, (2004), they again have limited it to union workplaces only.
 
This latest decision means that if a nonunion employer is conducting an investigatory interview and the employee they are interviewing requests to have a co-worker present, the employer has the option to deny the request without also having to stop the interview as they had to do after the Epilepsy Foundation decision.  This should enable employers to conduct investigations more efficiently because they will not be forced to stop an investigation or rely on incomplete information if an employee refuses to be interviewed without a co-worker.  It should also help keep information confidential.  Non-managerial co-workers have no duty to keep information confidential.  By participating in an interview, there is a risk the person, even inadvertently, may disclose confidential information to others who have no need to know.
 
Final Answer?
This is not likely to be the last word on this issue.  The IBM case was decided by a 3 to 2 vote along party lines.  It also marks the fourth time the Board has changed its mind since the original case was decided in 1975.  The terms for at least four of the five Board members expire within the next four years and members are appointed by the President, subject to Senate confirmation.  So if there is an administration change after the November election, it is likely the Board makeup will change and the issue may be revisited in the next few years.
 
What Should You Do?
The bottom line is that employers may now deny an employee’s request to have a co-worker, or anyone else for that matter, present at an investigatory interview without having to stop the interview.  An employer may still choose to allow someone else to be present; they are just not required to do so.  And in some cases it may be advisable to allow a co-worker to be in an interview if the employer thinks the co-worker may have helpful information or will help the employee stay calm and/or focused during the interview.  One other consideration apart from the co-worker issue is that it is almost always advisable to have a witness in an investigation or disciplinary meeting who can take notes and attest to what transpired during the meeting.  The witness can also provide assistance or get help in the event one of the parties becomes violent or threatens violence.