Since the United States Supreme Court's 1975 Weingarten decision, an employer who denied that right could not discipline or discharge the employee for refusing to participate unaccompanied in the interview. But the National Labor Relations Board ("NLRB") had for many years declined to expand Weingarten rights to a nonunion employee who requested the assistance of a co-worker at an investigatory interview. That changed on Monday, July 10, when the NLRB decided to apply the Weingarten rule to nonunion employees. Epilepsy Foundation of N.E. Ohio, 331 NLRB No. 92 (July 10, 2000).

The Epilepsy Foundation decision involved a nonunion employee who refused to attend his employer's investigatory interview without the presence of a co-worker. In response to the employer's discharging the employee on the basis that his refusal constituted gross insubordination, the NLRB held by a 3-2 vote that a nonunion employee's request for a co-worker's attendance is a form of engaging in "concerted activities for the purpose of mutual aid or protection" and is consequently protected by the National Labor Relations Act. The employer was ordered to reinstate the discharged employee with back pay.

Although nonunion employers (like unionized employers) may not now discharge or otherwise discipline employees for refusing to participate unaccompanied in investigatory interviews, the Weingarten rule also contains a number of critical rights for the employer, including:

1.An employer does not have to provide an employee with a representative unless the employee first requests it.

2.An employer may reject an employee's request for a representative and complete its investigation without interviewing the employee.

3.An employer may require an employee to name another co-worker if the original nominee is not available.

4.The employer may still require employee-only attendance at a meeting if the purpose is simply to announce predetermined discipline for a matter already investigated.

This latest NLRB decision means that it is important for both unionized and nonunion employers to make sure that their managers and supervisors know what to do when faced with an employee's request for a representative's assistance at an investigatory interview. Unionized employers and their legal counsel have developed training programs for understanding and applying the Weingarten rule. Since the NLRB appears to apply the basic components of the rule in the same way for nonunion employees, it should be easy to adapt those training programs. In any event, all employers should incorporate Weingarten principles into their management training programs.