Loudermill Rights (Public Employees Constitutional Rights to a Pre-Termination Hearing)
In another decision announcing a Constitutional right for public employees not possessed by private employees, the Supreme Court in Cleveland Board of Education v. Loudermill held that most public employees are entitled to a hearing before they are discharged. However, the “hearing” is not a full evidentiary hearing and need not include the opportunity to cross-examine your accusers. All that is required is:
- Oral or written notice of the charges and time for hearing;
- An explanation of the employees evidence; and
- An opportunity to present “his side of the story”
Further, since the issuance of the Loudermill decision, the lower courts have strictly limited the remedy for Loudermill violations. Specifically, an employee deprived of his Loudermill rights is not entitled to re-instatement if the employer can prove that there was a just cause for the discharge in any case.
Weingarten Rights (Employees Right To Union Representation)
The rights of unionized employees to have a present union representative during investigatory interviews were announced by the U.S. Supreme Court in a 1975 case (NLRB v. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689). These rights have become known as Weingarten RIghts.
Employees have Weingarten rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information that could be used as a basis for discipline or asks an employee to defend their conduct.
If an employee has a reasonable belief that discipline or adverse consequences may result from what he/she says, the employee has the right to union representation.
Management is not required to inform the employee of their Weingarten rights; it is the responsibility of the employee to know & request.
When an employee makes a request for union representation, management has three options:
- Stop questioning an wait until the representative arrives;
- Call off the interview; or
- Inform the employee that they will call off the interview unless the employee voluntarily gives up his/her rights to a union representative (an option the employee should always refuse)
Employers will often assert that the only role of a union representative in an investigatory interview is to observe the discussion. The Supreme Court, however, clearly acknowledges a representative’s right to assist & counsel workers during the interview. The Supreme Court has also ruled that during an investigatory interview management must inform the union representative of the subject of interrogation. The representative must also be allowed to speak privately with the employee, before the interview.
During the questioning, the representative can interrupt to clarify a question or to object to confusing or intimidating tactics. While the interview is in progress the representative can not tell the employee what to say but he may advise them on how to answer a question. At the end of the interview the union representative can add information to support the employee’s case.
Garrity Rights (Fifth Amendment applies to interrogations of public employees)
Public employees have certain constitutional rights that apply in their employment that may not apply to private employees. For example, in Garrity v. New Jersey, the Supreme Court held that statements obtained in the course of an investigatory interview under threat of termination from public employment couldn’t be used as evidence against the employee in subsequent criminal proceedings. If, however, you refuse to answer questions after you have been assured that your statements cannot be used against you in a criminal proceeding, the refusal to answer questions thereafter may lead to the imposition of discipline for insubordination. Further, while the statements you make may not be used against you in subsequent criminal proceedings, they can still form the basis for discipline on the underlying work-related charge.
To ensure that your Garrity rights are protected, you should ask the following questions:
- If I refuse to talk, can I be disciplined for the refusal?
- Can that discipline include termination of employment?
- Are my answers for internal and administrative purposes only and are not to be used for criminal prosecution?
If you are asked to provide a written statement regarding the subject of your interview, the following statement should be included in your report:
“It is my understanding that this report is made for internal administrative purposes only. This report made by me after being ordered to do so by my supervisor. It is my understanding that refusing to provide this report could result in my being disciplined for insubordination up to and including termination of employment. This report is made pursuant to that order and the potential discipline that could result for failing to provide this report.”