Investigations and Investigatory Interviews
MAPE stewards can often be called on to represent employees who are being interviewed by the employer as part of an investigation. If the interview could lead to discipline, then the employee has a right to union representation by virtue of what are commonly called Weingarten rights.
Weingarten rights are named after the Supreme Court decision in NLRB v. Weingarten Inc. (1975), which established that union represented employees have a right to union representation at interviews that could lead to discipline.
The employee must specifically request union representation before the employer is required to provide it. When in doubt, it is always safer for the employee to request representation.
Once the request for representation has been made by an employee, the employer has three options:
- Stop the meeting, call the steward and then continue the meeting with the steward present.
- Tell the employee that the meeting will be terminated unless they agree to proceed without a steward.
- If the steward is unavailable, stop the meeting altogether and schedule it for a later date and time.
Accommodation of a request for representation is required when the employee has a reasonable belief that the investigatory interview could result in his or her discipline. In most cases, representation is granted if an employee requests it. A general investigation that does not target specific employees, however, will not necessarily provide the employee Weingarten rights. For instance, in the case of missing property form a state workplace, a supervisor asking general questions of all employees about the property’s whereabouts would not necessarily trigger Weingarten rights. But if an employee was directly responsible for securing that missing property and is being asked specific questions about its location, then Weingarten rights can be properly invoked—one can reasonably suspect that discipline could be imminent.
Employees should be reminded that a request for union representation is not an admission of guilt. All employees would be wise to have a steward or business agent present at an investigatory interview. Having union representation means having support, having a witness, and having an advocate. Employees should always clarify the nature of meetings with supervisors that become one- way interrogations and request union representation if they believe that they are being investigated.
Since investigations can arise suddenly in the workplace, MAPE stewards should be prepared to represent employees who have been called to an investigatory interview.
Typically the employer will supply a “Tennessen Warning” to the employee who will be questioned in an investigatory interview. The Tennessen Warning must advise the employee of (1) why the data (the interview responses) is being collected; (2) how the collecting agency intends to use the data; (3) what the consequences of refusing to answer questions are and whether the employee is legally required to supply the data; (4) what if any discipline might result from refusing to respond to questions; and (5) what other persons or agencies are authorized by law to receive the data.
A Tennessen Warning is not an inherently union related phenomenon. It is a requirement of the Minnesota Data Practice Act (Minnesota Statute 13.04 subd. 2) that is triggered when an individual is requested by a governmental entity to supply private or confidential information about themselves. The necessity for a Tennessen Warning is triggered when an individual is asked by a governmental entity to supply private or confidential data concerning themselves, regardless of the context.
Perhaps the most important element of the Tennessen Warning is the requirement that employees being interviewed be told of the consequences of refusing to provide information that is requested of them. If employees are advised that they will be disciplined for refusing to answer questions, statements made under any threats of such discipline (duress) cannot be used against the employee in a subsequent criminal proceeding. Conversely, if the employee is told that there are no consequences for refusing to answer questions, then there is no coercion. Any statements would be admissible in court against the employee at a later date.
Failing to issue the warning is or can be a violation of the Data Practices Act, and can create the basis for an argument that information obtained without the benefit of a warning should be excluded from evidence. While important, the Tennessen Warning is not an issue that supersedes all other issues. However, a proper Tennessen Warning should answer the basic questions regarding the nature of the investigation, but a Steward should be prepared to ask some basic questions.
Steward’s Role in Investigatory Interviews
An investigatory interview is called by the employer and, as such, the meeting “belongs to employer.” The employer is within its right to ask questions of the employee.
The steward’s level of participation in the meeting depends to some extent on the competence of the investigator conducting the interview. If the investigator conducts the meeting correctly, the Steward may only ask some routine questions and occasionally ask for clarification of a question for the employee. If, however, the investigator is sloppy or incompetent, the steward may have to intervene repeatedly to guarantee that the represented employee’s rights are not violated.
Stewards can typically do the following in an investigatory interview when appropriate:
- Insist prior to the questioning that the employer give some indication of what is being investigated (e.g. theft, stakeholder complaints, tardiness, etc.).
- Consult with the employee in private prior to the questioning or at any time during the meeting (breaking during the meeting for private consultation is commonly called “caucusing”).
- Speak during the meeting. Although the steward has no right to bargain over the purpose of the meeting, he or she can object to irrelevant, offensive, or overly general (“fishing expedition”) lines of questioning.
- Ask the interviewer to clarify a question so the employee understands the question. Confirm that an employee understands a question has been asked by the interviewer by directly consulting the employee.
Before allowing the questioning to proceed, the Steward should make sure that he or she possesses satisfactory answers to these basic questions: (1) Is this an investigation that may lead to discipline? (2) Is there a possibility of criminal charges? (3) If the employee refuses to answer questions, is he or she subject to discipline? (If yes, state “for the record” that the employee will be answering questions under duress and compulsion); and (4) What is the nature of this investigation?
If the employer indicates that criminal charges are a possibility, then a steward should immediately call for a recess and advise the employee to seek legal counsel.
For the employee being investigated, the presence of a Steward at an investigatory meeting can be helpful in many ways. A steward can sometimes:
- Help a fearful or inarticulate employee explain what happened.
- Stop an employee from losing his/her temper and making the situation worse.
- Help prevent supervisors from giving a false account or "spinning" the employee's answers.
- Serve as a witness and recorder of the meeting.
- Help keep the supervisor on track and prevent a “fishing expedition” line of questioning.
- Raise extenuating circumstances.
An investigatory meeting is the employer's meeting. Be respectful, just as you, the steward, expect the employer to be respectful at the union driven meetings like grievance hearings. That said, remember the "equality principle" which sets your authority as a steward as equal to the employer. Your obligation is to represent the employee interests to the best of your ability and as an equal to management.
Prepare the Employee in Advance for the Investigation
If you are contacted to represent an employee in an investigation, meet with that employee as soon as possible. They are going to be fearful and your role is to try and give them some sense of control over an unsure situation by sharing information. Most investigations unfold in a similar way, so sharing the details of the process and how he/she should respond will help to reduce their apprehension. Try and determine with the employee what he/she thinks might be the reason for the investigation. He/she may know what it is about or he/she may not. It may help the employee to talk about it.
Give the following information and advice:
- At the beginning of the investigatory hearing, you will likely be offered a Tennessen Warning and asked to sign it. Sign it, and ask for a copy.
- A Tennessen Warning exists because of Minnesota Law, specifically the Minnesota Data Practices Act. Minnesota Statute 13.04, subd. 2.
- The necessity of a Tennessen Warning is triggered when an individual is asked to supply private or confidential data concerning themselves.
- In the case of an investigation, the Tennessen warning will outline why the data is being collected, who will have access to it, and how the data collected will be used.
- You will be asked questions regarding the nature of your job and eventually they will lead into questions related to why they are conducting this investigation.
- Tell the truth to the best of your recollection. Do not lie.
- Do not volunteer more information than is necessary to answer the question. Yes and no answers are perfectly acceptable. Do not ramble.
- Do not feel pressured to make something up in order to answer a question. “I do not remember,” is the answer appropriate when you do not recall the information for which you are being asked.
- Do not answer questions that are not clear to you. Make the investigator clarify any question that you do not understand.
- Try to keep your emotions in check. Getting angry or defensive could hurt your case.
- As your steward, I will be taking notes, but feel free to jot down anything you want to talk with me about later or at a break.
- At any point that you feel you need a break or want to consult with me, state your desire for a break. As your steward, I may call for a break to talk with you or if I feel you need it.
- At the close of the investigatory hearing, formally request a copy of your interview statement.
- As your steward, my role is not to mount a defense (that will come later if discipline is imposed and a grievance is filed). I will be there to take notes, consult with you, help keep the investigator away from fishing beyond the scope of the investigation and to force clarity at the start of the questioning. To do that I will ask the following questions:
- What is the nature of this investigation? (Upon hearing something that is a surprise to you, I will call for a caucus with you to get the back story).
- Is there a possibility of criminal charges? (If the answer is yes or maybe, I will advise the employer that the investigation should be re-scheduled until you secure legal counsel).
- If the employee refuses to answer questions, is he or she subject to discipline? (If yes, I will state “for the record” that the employee will be answering questions under duress and compulsion.)
- After the investigation is completed, I will meet with you to debrief and talk about possible “next steps” on the part of the employer and the response from the union based on those actions.
- It may take several days or even weeks before we hear anything from the employer. During that time, try to remain calm and continue to do your job to the best of your ability. When we hear from the employer, we will meet again, but I am available to meet with you whenever you want to talk.