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Weingarten Rights
& Labor Statutes |
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. WEINGARTEN RIGHTS
"If
this discussion could in any way lead to my being disciplined or
terminated,
or affect my personal working conditions, I respectfully request that my union representative, officer, or steward be present at this meeting. Without representation present, then... I choose not to participate in this discussion." The
National Labor Relations Act (NLRA) gives employees the right to
assistance from union representation during investigatory interviews.
Although not explicit in the Act, the right was declared by the US
Supreme Court in 1975 in NLRB vs. J. Weingarten, Inc. The rules the
court announced are known as Weingarten rights.
Employees
sometime confuse the Weingarten rules with the Miranda rules. However
there is a big difference in the two rules. Under Miranda rules police
who question criminal suspects MUST notify them of their right to
remain silent and to have an attorney present during questioning. Under
Weingarten employers have NO obligation to inform the employees of
their rights to union representation. The employee must ask for union
representation in such meetings
An investigatory interview occurs when: Management questions an employee to obtain information and the employee has a reasonable belief that discipline or other adverse consequence may result from what he or she says. Investigatory interviews relate to such subjects as: absenteeism, accidents, compliance with work rules damage to company property drinking drugs falsification of records lateness, poor attitude poor work performance sabotage slowdowns theft violations of safety rules Not
every discussion with management is an investigatory interview. For
example, a supervisor may speak to an employee about the proper way to
do a job. Even if the supervisor asks the employee questions, this is
not an investigatory interview as the use or possibility of discipline
is remote.
However,
a routine conversation changes character if a supervisor becomes
dissatisfied with an employee’s answers and takes a hostile attitude.
If this happens, the meeting becomes an investigatory interview and
Weingarten rules apply but you must ask for representation at that time.
When
a supervisor calls an employee to the office to announce a warning or
other discipline that has already been decided it is not an
investigatory meeting since the supervisor is just informing the
employee of a previously arrived-at decision. Such a meeting becomes an
investigatory interview, however, if the supervisor asks questions that
are related to the subject matter of the discipline.
Having a steward present can help in many ways. The steward can:
The Employee Rights under Weingarten rules are as follows: The employee may request union representation before or during the interview. Remember the company does not have to offer union representation. After the request, the employer must choose from among three options.
If the employer denies the request for union representation and questions the employee, it commits an unfair labor practice and THEN the employee may refuse to answer. Although some supervisors sometimes try to assert that the only function of a steward at an investigatory interview is to observe the discussion (in other words be a SILENT witness) this is WRONG. The steward has the right to counsel the employee during the interview and to assist the employee to present the facts. Legal cases have established the following rights and obligations of the steward.
Remember, if called to a meeting with management,
read the following statement to management BEFORE the meeting starts!! "If
this discussion could in any way lead to my being disciplined or
terminated,
or affect my personal working conditions, I respectfully request that my union representative, officer, or steward be present at this meeting. Without representation present, then... I choose not to participate in this discussion." Below are some Minnesota Labor Statutes that have implications for all of us and are helpful to know. For a complete listing of Minnesota Statutes click on the link below and select from the Chapters Section the area that interests you. Labor Statutes are found in Chapters 175-186. Subdivision 1. Prohibition, penalty. No employer or agent thereof shall directly or indirectly solicit or require a polygraph, voice stress analysis, or any test purporting to test the honesty of any employee or prospective employee. No person shall sell to or interpret for an employer or the employer's agent a test that the person knows has been solicited or required by an employer or agent to test the honesty of an employee or prospective employee. An employer or agent or any person knowingly selling, administering, or interpreting tests in violation of this section is guilty of a misdemeanor. If an employee requests a polygraph test any employer or agent administering the test shall inform the employee that taking the test is voluntary. . Subdivision 1. Six-week leave; birth or adoption. An employer must grant an unpaid leave of absence to an employee who is a natural or adoptive parent in conjunction with the birth or adoption of a child. The length of the leave shall be determined by the employee, but may not exceed six weeks, unless agreed to by the employer. Subd. 2. Start of leave. The leave shall begin at a time requested by the employee. The employer may adopt reasonable policies governing the timing of requests for unpaid leave. The leave may begin not more than six weeks after the birth or adoption; except that, in the case where the child must remain in the hospital longer than the mother, the leave may not begin more than six weeks after the child leaves the hospital. Subd. 3. No employer retribution. An employer shall not retaliate against an employee for requesting or obtaining a leave of absence as provided by this section. Subd. 4. Continued insurance. The employer must continue to make coverage available to the employee while on leave of absence under any group insurance policy, group subscriber contract, or health care plan for the employee and any dependents. Nothing in this section requires the employer to pay the costs of the insurance or health care while the employee is on leave of absence. Subdivision 1. Definition. For purposes of this section, "employee" does not include the requirement of section 181.940, subdivision 2, clause (1). Subd. 1a. Foster child. For the purpose of this section, "child" includes a foster child. Subd. 2. Leave of 16 hours. An employer must grant an employee leave of up to a total of 16 hours during any 12-month period to attend school conferences or school-related activities related to the employee's child, provided the conferences or school-related activities cannot be scheduled during nonwork hours. If the employee's child receives child care services as defined in section 119B.011, subdivision 7, or attends a prekindergarten regular or special education program, the employee may use the leave time provided in this section to attend a conference or activity related to the employee's child, or to observe and monitor the services or program, provided the conference, activity, or observation cannot be scheduled during nonwork hours. When the leave cannot be scheduled during nonwork hours and the need for the leave is foreseeable, the employee must provide reasonable prior notice of the leave and make a reasonable effort to schedule the leave so as not to disrupt unduly the operations of the employer. Subd. 3. No pay required; substitute of paid leave. Nothing in this section requires that the leave be paid; except that an employee may substitute any accrued paid vacation leave or other appropriate paid leave for any part of the leave under this section. Subdivision 1. Definitions. (a) For the purposes of this section, the following terms have the meanings given to them in this subdivision. (b) "Employee" means a person who performs services for hire for an employer, for an average of 20 or more hours per week, and includes all individuals employed at any site owned or operated by an employer. Employee does not include an independent contractor. (c) "Employer" means a person or entity that employs 20 or more employees at at least one site and includes an individual, corporation, partnership, association, nonprofit organization, group of persons, state, county, town, city, school district, or other governmental subdivision. Subd. 2. Leave. An employer must grant paid leaves of absence to an employee who seeks to undergo a medical procedure to donate bone marrow. The combined length of the leaves shall be determined by the employee, but may not exceed 40 work hours, unless agreed to by the employer. The employer may require verification by a physician of the purpose and length of each leave requested by the employee to donate bone marrow. If there is a medical determination that the employee does not qualify as a bone marrow donor, the paid leave of absence granted to the employee prior to that medical determination is not forfeited. Subd. 3. No employer sanctions. An employer shall not retaliate against an employee for requesting or obtaining a leave of absence as provided by this section. Subd. 4. Relationship to other leave. This section does not prevent an employer from providing leave for bone marrow donations in addition to leave allowed under this section. This section does not affect an employee's rights with respect to any other employment benefit. Subdivision 1. Right to review; frequency. Upon written request by an employee, the employer shall provide the employee with an opportunity to review the employee's personnel record. An employer is not required to provide an employee with an opportunity to review the employee's personnel record if the employee has reviewed the personnel record during the previous six months; except that, upon separation from employment, an employee may review the employee's personnel record once each year after separation for as long as the personnel record is maintained. Subd. 2. Time; location; condition; copy. (a) The employer shall comply with a written request pursuant to subdivision 1 no later than seven working days after receipt of the request if the personnel record is located in this state, or no later than 14 working days after receipt of the request if the personnel record is located outside this state. (b) With respect to current employees, the personnel record or an accurate copy must be made available for review by the employee during the employer's normal hours of operation at the employee's place of employment or other reasonably nearby location, but need not be made available during the employee's working hours. The employer may require that the review be made in the presence of the employer or the employer's designee. After the review and upon the employee's written request, the employer shall provide a copy of the record to the employee. (c) With respect to employees who are separated from employment, upon the employee's written request, the employer shall provide a copy of the personnel record to the employee. Providing a copy of the employee's personnel record to the employee satisfies the employer's responsibility to allow review as stated in subdivision 1. (d) The employer may not charge a fee for the copy. Subd. 3. Good faith. The employer may deny the employee the right to review the employee's personnel record if the employee's request to review is not made in good faith. The burden of proof that the request to review is not made in good faith is on the employer. Subd. 4. Employer defined. For the purposes of this section, "employer" includes a person who has one or more employees. (a) When any employer employing labor within this state discharges an employee, the wages or commissions actually earned and unpaid at the time of the discharge are immediately due and payable upon demand of the employee. If the employee's earned wages and commissions are not paid within 24 hours after demand, whether the employment was by the day, hour, week, month, or piece or by commissions, the employer is in default. The discharged employee may charge and collect the amount of the employee's average daily earnings at the rate agreed upon in the contract of employment, for each day up to 15 days, that the employer is in default, until full payment or other settlement, satisfactory to the discharged employee, is made. In the case of a public employer where approval of expenditures by a governing board is required, the 24-hour period for payment does not commence until the date of the first regular or special meeting of the governing board following discharge of the employee. (b) The wages and commissions must be paid at the usual place of payment unless the employee requests that the wages and commissions be sent through the mails. If, in accordance with a request by the employee, the employee's wages and commissions are sent to the employee through the mail, the wages and commissions are paid as of the date of their postmark. Subdivision 1. Prompt payment required. (a) When any such employee quits or resigns employment, the wages or commissions earned and unpaid at the time the employee quits or resigns shall be paid in full not later than the first regularly scheduled payday following the employee's final day of employment, unless an employee is subject to a collective bargaining agreement with a different provision. If the first regularly scheduled payday is less than five calendar days following the employee's final day of employment, full payment may be delayed until the second regularly scheduled payday but shall not exceed a total of 20 calendar days following the employee's final day of employment. (b) Notwithstanding the provisions of paragraph (a), in the case of migrant workers, as defined in section 181.85, the wages or commissions earned and unpaid at the time the employee quits or resigns shall become due and payable within five days thereafter. Subd. 2. Nonprompt payment. Wages or commissions not paid within the required time period shall become immediately payable upon the demand of the employee. If the employee's earned wages or commissions are not paid within 24 hours after the demand, the employer shall be liable to the employee for an additional sum equal to the amount of the employee's average daily earnings provided in the contract of employment, for every day, not exceeding 15 days in all, until such payment or other settlement satisfactory to the employee is made. Subd. 3. Settlement of disputes. If the employer disputes the amount of wages or commissions claimed by the employee under the provisions of this section or section 181.13, and the employer makes a legal tender of the amount which the employer in good faith claims to be due, the employer shall not be liable for any sum greater than the amount so tendered and interest thereon at the legal rate, unless, in an action brought in a court having jurisdiction, the employee recovers a greater sum than the amount so tendered with interest thereon; and if, in the suit, the employee fails to recover a greater sum than that so tendered, with interest, the employee shall pay the cost of the suit, otherwise the cost shall be paid by the employer. Subd. 4. Employees entrusted with money or property. In cases where the discharged or quitting employee was, during employment, entrusted with the collection, disbursement, or handling of money or property, the employer shall have ten calendar days after the termination of the employment to audit and adjust the accounts of the employee before the employee's wages or commissions shall be paid as provided in this section, and the penalty herein provided shall apply in such case only from the date of demand made after the expiration of the period allowed for payment of the employee's wages or commissions. If, upon such audit and adjustment of the accounts of the employee, it is found that any money or property entrusted to the employee by the employer has not been properly accounted for or paid over to the employer, as provided by the terms of the contract of employment, the employee shall not be entitled to the benefit of sections 181.13 to 181.171, but the claim for unpaid wages or commissions of such employee, if any, shall be disposed of as provided by existing law. Subd. 5. Place of payment. Wages and commissions paid under this section shall be paid at the usual place of payment unless the employee requests that the wages and commissions be sent to the employee through the mails. If, in accordance with a request by the employee, the employee's wages and commissions are sent to the employee through the mail, the wages and commissions shall be deemed to have been paid as of the date of their postmark for the purposes of this section. |
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Communications Workers of America
Local 7201, AFL-CIO, CLC 75 S. Owasso Blvd W. St. Paul, Mn. 55117 Office: 651-774-7201 Fax: 651-774-1407 cwa7201@qwestoffice.net |
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