When faced with a situation in which one or more employees are suspected of misconduct, an employer’s logical action is to bring in the suspects for questioning. Human resources and/or management interview each employee in an attempt to determine the facts in preparation for appropriate discipline, if warranted in the judgment of the employer.
In a unionized workforce, however, an employer generally may not proceed with an investigatory interview if the employee under investigation demands representation by a union official. This so-called Weingarten right (named for NLRB v. Weingarten, 420 U.S. 251 (1975)) does not currently apply to a nonunionized workforce. That may change.
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