Can I get a witness?

The question of whether a nonunion employee has a right to bring a co-worker to an investigatory interview has been the source of inconsistent rulings by courts and government agencies over the years; from MLeeSmith.

Let's say a number of your employees have complained that a co-worker has been making sexually suggestive remarks to them and other women at work. Your company maintains a
   "no-tolerance" sexual harassment policy, so you need to get to the bottom of those accusations.

   One of your first steps is to call Bob, the accused employee, into your office to get his side of the story.  When you ask him to come talk to you about his co-workers' claims, he says: "This sounds serious. I could get fired, and I won't talk with you unless I can bring a witness."

   Do you let him bring his witness? Do you fire him for even making that request? Do you press on in your investigation of the allegations and skip interviewing him entirely?

   The question of whether a nonunion employee has a right to bring a co-worker to an investigatory interview has been the source of inconsistent rulings by courts and government agencies over the years. The National Labor Relations Board (NLRB) has made a ruling in a case involving Wal-Mart to try to straighten out that issue for employers.

Starting Point

The issue of employees requesting that a co-worker be present when a supervisor or manager interviews them first arose in unionized workplaces. In its 1975 Weingarten decision, the U.S. Supreme Court ruled that union-represented employees had the right to bring a union representative to any investigatory meetings that might result in discipline. As time passed, nonunion employees began trying to transplant Weingarten rights to their own situations.

   Specifically, nonunion workers began asserting a right to bring a co-worker or attorney into meetings with their supervisors or managers if the interviews could lead to discipline. They asserted that right even though they were in a nonunion environment.

   A series of rulings by courts and the NLRB in the last two years has sent mixed messages about whether nonunion employees could insist on witnesses at disciplinary meetings.

Employee Wants Witness

   Ken Stanhope worked in a Wal-Mart store in Alaska. He was talking to a co-worker, Cynthia Adams, when he began to use profanity as he referred to one of the assistant store managers. He also became upset and highly agitated.  Worried, Adams reported his bizarre behavior to two store managers.

   The managers approached Stanhope about his reported use of profanity. Before he would meet with them, he said, he wanted a witness present. They explained he had the right to request a witness, but they weren't required to agree to his request. Wal-Mart had a policy permitting workers to talk one-on-one with management, but the company didn't allow co-workers to be present at those discussions.

   When Stanhope continued to insist on bringing a witness to the interview, he was offered the option of providing a written statement giving his side of the story. The Wal-Mart managers explained that if he insisted on having a witness and didn't provide a written statement, they
   would continue the investigation and make a decision based only on the information they  obtained from other employees. He still refused to meet with them unless he could bring a witness, and he never provided a written statement.

   At the conclusion of their investigation, the managers fired him for creating a hostile work environment and using profanity. The NLRB ruled Wal-Mart wasn't required to grant Stanhope's request and was entitled to require its employee to attend and cooperate in an investigatory
   interview without the presence of a witness. Wal-Mart Stores, Inc., 343 NLRB No. 127.

No, You Can't Get a Witness

Nonunion employees have the right to ask for the presence of a witness at any disciplinary meeting or interview.  Asking for a witness to be present is considered protected conduct. In fact, you can't retaliate against someone for making such a request.

On the other hand, a nonunion employer isn't required to agree to the employee's request. Nor can the employee refuse to participate in an interview or investigation without a witness present.

Today's employers have a significant obligation to conduct prompt and thorough workplace investigations -particularly when harassment, discrimination, corporate ethics, or workplace violence is involved.

   Permitting a nonunion employee to be accompanied by a witness (including a co-worker, spouse, or attorney) could unreasonably interfere with your ability to conduct an investigation.

   A co-worker's presence at an investigatory meeting could also compromise the confidentiality of the inquiry.  Obviously, if you begin to let employees bring others into the investigative process, you will be hard pressed to stop that practice when other employees make the same
 request down the road.

Copyright 2005 M. Lee Smith Publishers LLC. This article is excerpted from *Oklahoma Employment Law Letter.* Read more about the print newsletter and the attorneys who write it:

OKLAHOMA EMPLOYMENT LAW LETTER does not attempt to offer solutions to any individual problems or to provide legal advice to its readers. Rather, the Oklahoma Employment Law
Letter seeks to provide information about current developments in Oklahoma employment law. Questions about individual problems or requests for legal advice should be addressed to an employment law attorney of your choice.

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