Weingarten Rights

The Right to Request Representation During an Investigatory Interview

Section 7 of the National Labor Relations Act (NLRA) protects employees’ right to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection”

Among the rights protected by Section 7 is the right of employees, upon request, to have their representative present during an interview that the employee reasonably believes could lead to discipline.  This right was first articulated by the Supreme Court in the case, NLRB v. J. Weingarten, Inc.  In that case, the Court found that Section 7 of the NLRA protects employees who refuse to submit to certain interviews without a requested representative present. While under current Board law, only union-represented employees have this right, the NLRB General Counsel is asking the Board to return to its previous rule that all employees have the right, whether represented by a union or not.

An employee’s requested representative, which may be a union steward, business agent or officer, or fellow employee, is often referred to as a “Weingarten representative.”  Weingarten representatives are entitled to provide advice and active assistance to employees during investigatory interviews.  Employees’ right to request their representatives are frequently referred to as “Weingarten rights.” 

Employers violate the NLRA if they proceed with an investigatory interview while refusing an employee’s request or retaliate against them for making the request.  Depending on the circumstances of each case, the Board may order that the employer cease and desist, post a remedial notice, require the employer to repeat the interview with a union member present, or rescind and remedy discipline resulting from a Weingarten violation.