September 1, 2000
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ALERT: SIGNIFICANT CHANGE IN THE LAW
REGARDING YOUR RIGHT TO DISCIPLINE AN EMPLOYEE
If the employees in your company are not unionized, you probably thought the National Labor Relations Board had little, if anything, to do with you. And, in fact, it is true that the vast majority of what the NLRB does affects only unionized employers. However, the NLRB's jurisdiction extends to virtually all employers, and what it did on July 10 is truly remarkable in its potential scope and impact. It will most likely mandate a change in your everyday business activities.
Here's the situation. You believe that one of your employees, Sue Zallot, may have done something wrong - violated a policy, messed up an assignment, harassed a fellow employee, whatever. You decide to interview Ms. Zallot as part of your investigation. She refuses to participate in the interview unless one of her co-employees, a known troublemaker and "big mouth", gets to sit in. She says she wants a witness. Your employees are not unionized, and there is no agreement or policy that gives Ms. Zallot this right. You consider this a private matter between you and her, you make the rules, and you refuse. She says she won't participate in the interview, you reach a impasse, you can't let the employees run the company, and you fire her. Any problem?
For many years, unionized employees have had the right to insist upon the presence of a co-worker - usually a shop steward - during such disciplinary interviews. In 1982, the NLRB tried to extend that right to non-unionized employees as well. NLRB decisions are appealable to the federal Circuit Courts of Appeal, and as soon as that NLRB ruling was appealed, it was quickly overturned.
Almost twenty years later, the NLRB has tried it again. On July 10, by a 3-2 vote, the NLRB ruled that non-unionized employees have a right to have a co-worker of their choosing present during an investigatory interview, where the employee reasonably believes that the interview may result in discipline. If you violate that right, you could be ordered to reinstate the employee, with back pay.
Some clarifications. First, this rule does not require that you conduct an investigatory interview, and it only applies if you choose to do so. Second, this rule only applies to investigatory interviews, and not other meetings, such as advising an employee of discipline that has already been decided upon. Third, you do not have to advise the employee of this right to have a co-worker present during an investigatory interview. Fourth, you only need to have a co-worker present if the employee being investigated requests it.
The NLRB is a body of political appointees. Different administrations appoint different NLRB members to serve different agendas, and present NLRB members often pay little respect to precedent rendered by prior NLRB members of a contrary political stripe. That appears to be the case here, and the upshot is turmoil.
We believe this decision will be appealed and, most likely, reversed, although that is less than certain. In the interim, this ruling stands as the law, and it is one of those rulings that is easier to state than it is to apply to real life situations. For example, what is the role of the co-worker witness during the interview? Ask questions? Call additional witnesses? What about confidentiality concerns that would be best kept between you and the employee, such as the confidentiality that should apply in an sexual harassment investigation?
As for now, attorneys can take some guidance in the way courts have answered these kinds of questions in the union context, and we strongly suggest that, as situations arise, you seek counsel in this most sensitive and highly-charged area until further rulings fill out the legal landscape. Whether this ruling remains the law, and how to interpret it while it stands, promises to be a most challenging - and litigious - topic over the next few years.
SUMMARY - The law has changed, at least for now. Even if your employees are not unionized, if they request it, they have a right to have a co-worker present if they are being interviewed about something that can lead to discipline. Failure to abide by the rule can lead to an order undoing the discipline and requiring the payment of damages to the employee
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
