Know Your Rights

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Weingarten Rights

One of the many benefits you receive as a union member is protection from coercive interrogation. In a 1975 case, the U.S. Supreme Court established what are known as Weingarten Rights for all employees represented by unions. As a result of this decision, you are entitled to have a union representative present when management calls you in for an investigative interview. An investigative interview is a meeting where management questions an employee to obtain information and the employee has a reasonable belief that he or she will be disciplined or fired as a result. You can ask for your union representative at any time before or during the investigatory interview. When you invoke your Weingarten rights, the employer must either grant the request and delay questioning until the union representative arrives or deny the request and end the meeting immediately. Once your representative arrives, you are entitled to consult with him or her privately before management starts asking questions. Your union representative can then object to intimidation tactics or confusing questions.

If management denies your request and continues with the meeting, you should immediately write down that your Weingarten rights were denied. It is a good idea to bring writing materials to any meeting, just in case you need to make a record. Do not lose your temper or refuse to answer any of management’s questions. Politely explain that you feel uncomfortable and would really prefer to have a union steward present. If management tells you the union representative is unavailable, ask them to reschedule the meeting until you’ve had a chance to meet with your representative. If your requests are not granted, proceed carefully. Answer all of the questions truthfully and write everything down. After the meeting, contact your union representative as soon as possible and give him or her a copy of your notes from the meeting.

Weingarten rights only apply to union members covered under the National Labor Relations Act and to federal employees under the Federal Service Labor-Management Relations Statute. Railway and airline employees are covered by the Railway Labor Act and therefore do not have Weingarten rights. Other non-union employees may ask to have a coworker present at an investigatory interview and they cannot be punished for the request. However, the employer is under no obligation to grant it.

Steps to invoke your Weingarten Rights:

  1. When called into a meeting, always ask the administrator about the purpose of the meeting.  If you believe that it is an investigatory meeting that could lead to disciplinary action against you, ask for union representation (Weingarten Rights). The meeting should not be held until you can reasonably arrange to have representation at the meeting.
  2. If you are in a meeting with an administrator(s), you have a right to union representation at any point during the meeting when you believe that the matters being discussed are investigatory in nature and might lead to disciplinary action against you.  The meeting should be suspended until you have reasonable time to arrange for union representation. The employer can do one of three things:  (1) Delay the investigation until you get a union representative (though not necessarily the exact representative that you want if another one is more readily available). (2) Deny your request and announce disciplinary action without conducting the meeting. (3) Deny your request for union representation.   
  3. If the administrator refuses to grant your request for union representation, do not walk out of the meeting as that might be grounds for a charge of insubordination.  Ask why the employer is refusing your request for a representative.  Listen but say as little possible.  If a question is directed at you, repeat you request for union representation.  Contact you union representative immediately after the meeting.

Use the Weingarten Rights Statement below to invoke your right to union representation:

“If this discussion could lead in any way to my being disciplined or terminated, or affect my personal working conditions, I respectfully request that a union representative be present at the meeting.  Without representation, I choose not to answer any questions.”

Protection from Discrimination

As an employee, you are covered by Title VII of the Civil Rights Act of 1964, which protects you from discrimination and harassment in the workplace. If you think your employer has discriminated against you, treated you unfairly, or harassed you because of your race, color, ethnicity or national origin, religion, sex, pregnancy, disability, age, or genetic information, you should voice your concerns to your local union steward or another union representative. They can help you decide whether it’s best to utilize the union’s internal grievance system or to file a charge with the Equal Employment Opportunity Commission, and they can help guide you through the process.

While discrimination based on sexual orientation is not prohibited under Title VII or other federal law, currently 21 states and the District of Columbia have employment discrimination statutes that prohibit discrimination on that basis. For additional information on these state laws as well as a list of cities and counties with ordinances that prohibit employment discrimination on the basis of gender identity, click here.

Wage and Hour Law

If your employer makes more than $500,000 a year in annual sales or is engaged in interstate commerce, you are covered by the Fair Labor Standards Act (FLSA). The Act establishes wage and hour laws, and since most employers are engaged in interstate commerce, you are probably covered by the FLSA.

Under the Act, if you work more than 40 hours a week your employer is required to pay you time-and-a-half for every additional hour you work. The Act also establishes a federal minimum wage, which is currently set at $7.25 an hour. Many states have passed laws setting a higher minimum wage, and employers in those states must abide by the higher rate. To learn more about the minimum wage rate in your state, please click here. If you are an employee who works for tips, federal law requires your employer to pay you at least $2.13 an hour in base pay.

Some types of employees are automatically excluded under the FLSA and therefore they are not subject to the federal minimum wage or overtime pay requirements. These groups include agricultural workers, executive, administrative and professional employees (including teachers), employees of some small newspapers, fishermen, domestic workers, railroad employees, home healthcare workers, movie theater employees, taxi drivers and others. To determine whether you are covered under the FLSA, check out the U.S. Department of Labor’s online survey.

The Department of Labor’s Wage and Hour Division is in charge of enforcing the FLSA. If you think your employer has violated the Act, please contact your union steward right away. He or she can help you use the union’s internal grievance process to ensure that your employer complies with the law.

For more information on the FLSA, please check out the Department of Labor’s “Handy Reference Guide to the Fair Labor Standards Act.” To listen to a podcast discussing the Fair Labor Standards Act, visit this fun website.

Family and Medical Leave

The Family and Medical Leave Act allows all covered employees to take up to 12 weeks of unpaid, job-protected leave within a 12-month period for specified family and medical reasons. In addition, covered employees are entitled to 26 weeks of job-protected leave to care for a servicemember with a serious injury or illness. Qualifying family and medical reasons include the birth and care of your child, caring for an immediate family member with a serious health condition, instances where you are unable to work because of a serious health condition, and circumstances that arise when your immediate family member is on active duty or is called to active duty as a member of the National Guard or Reserves. The act applies to all public agencies (including local and federal employers), schools and private-sector employers who have employed 50 or more employees within a 20 week period in the current or preceding calendar year. In order to be eligible for FMLA benefits, you must have worked for your covered employer for at least 12 months, worked at least 1,250 hours over the previous 12 months, and worked in a location where there are at least 50 coworkers employed within 75 miles.

When returning from FMLA leave, your employer is obligated to restore you to your original job or an equivalent job with the same pay, benefits, and other conditions of employment. Leave taken under the Act also cannot count against you for purposes of a “no fault” attendance policy.

If the need for leave is foreseeable, you must notify your employer 30 days before the leave starts and must comply with your employer’s usual procedural requirements for requesting leave. If the circumstances necessitating your leave are unforeseeable, you must notify your employer as soon as is practicable.

The Department of Labor’s Wage and Hour Division enforces the FMLA by investigating workers’ complaints. If you believe you are entitled to leave under the Act but your employer has denied your request or counted the leave against you, please contact your union steward right away. He or she can work with your employer to resolve the problem or can help you file a complaint with the Wage and Hour Division.

To learn more about the types of family and medical reasons that make you eligible for leave under the Act, please click here. A new amendment to the Act provides different standards for flight crew workers. If you are a flight attendant or a member of a flight crew, please click here.

Workers with Disabilities

Disability discrimination occurs when a covered employer treats an employee or job applicant unfavorably because he or she has a disability, a history of disability or a substantial physical or mental impairment.

The Americans with Disabilities Act (ADA) makes it unlawful for a state or local government or a private employer with at least 15 employees to discriminate against an individual with a disability who is qualified for the position. This same prohibition applies to the federal government under the Rehabilitation Act of 1973. Discrimination is prohibited for purposes of hiring, advancement, discharge, compensation, job training and all other terms and conditions of employment.

The law requires employers to provide reasonable accommodations for employees or applicants with disabilities, unless doing so would cause an “undue hardship” to the employer. According to federal regulations, an accommodation is “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” Examples of reasonable accommodations include making the workplace wheelchair accessible or providing a reader or interpreter for an employee who is deaf or hard of hearing or blind or vision impaired. Reallocating a marginal job function to another worker because an employee with a disability is unable to perform the function is also considered a reasonable accommodation. Under the ADA, “undue hardship” means an action that would cause the employer significant difficulty or expense in light the employer’s size, financial resources, and business needs. While an employer may not refuse to provide an accommodation because it requires some cost, the employer is also not required to provide the exact accommodation the employee or applicant asks for if there is another accommodation that will work, instead.

In order to be protected under the ADA and the Rehabilitation Act, you must be qualified for the job in question and have a disability as defined by law. You are covered if you meet one of the three following criteria:

  • You have a physical or mental condition that substantially limits one or more major life activities (such as breathing, learning, seeing, hearing, speaking, or taking care of yourself);
  • You have a history of a disability (such as cancer that is in remission); or
  • You are regarded by others as having a physical or mental impairment that is neither short-term nor minor (even if you do not actually have an impairment).

The ADA does not cover employees currently using illegal drugs, but it may protect a recovered drug addict who is qualified for the position in question and could otherwise be considered disabled. It may also protect an alcoholic if he or she is considered disabled under federal law. Employers may hold employees or applicants who are alcoholics or who use illegal drugs to the same performance standards as all other employees. For additional information about performance and conduct standards under the ADA, please click here.

An employer is not required to violate the terms of its collective bargaining agreement with a union in order to accommodate a disabled employee. This means that the ADA does not override seniority systems and placement provisions that the union has gained through bargaining. However, accommodations are required where the employee or applicant’s need can be reconciled with the terms of the union contract in place.

Courts have held that the ADA also prohibits harassment on the basis of disability. While the law does not prohibit a random offensive remark or an isolated incident of teasing, the comments or conduct become actionable when they occur so frequently or are so severe that they create a hostile working environment.

If you think you are being harassed or discriminated against because of a disability, you should contact your union steward right away. He or she can speak with your employer to find ways to stop the harassment and/or develop sufficient accommodations. Your steward can also guide you through the union’s internal grievance process or help you file a discrimination charge with the EEOC.

Source: What Can the Union Do For Employees Represented by the Union?