Weingarten rights arise when the employer is investigating an incident or an allegation and the employee being questioned has a reasonable expectation that the investigation may result in his or her own discipline.

An employee is entitled to union representation if the employer is investigating an employee’s alleged misconduct or inadequate work performance and convenes a meeting to elicit facts or get the employee’s “side of the story.”

Or, the employer may be investigating a situation in which the “wrongdoer” is unknown. If an employee believes his or her participation in the investigation could lead to discipline, the employee is entitled to union representation.

Weingarten rights can arise at any stage of an investigation. The employer may not have gathered any facts yet, may have some facts but not yet know whether discipline is warranted, or may have enough facts to know that some form of discipline is likely. What matters is that as soon as the employer seeks to discuss the issues or allegations with an employee who reasonably thinks he or she could be disciplined as a result of the investigation, the employee is entitled to have a union representative.

As soon as the employee becomes aware, or reasonably believes, that the employer is seeking information that may result in discipline or that is intended to support a disciplinary decision, the employee should simply state the desire to have a union representative present.

The request does not have to be in any particular form, nor does it have to be in writing. Even a question such as, “Shouldn’t I have a representative here?” is enough to trigger the employer’s Weingarten obligations.

The employee can make the request at any time before or during the meeting. (However, the employer will be permitted to use any information obtained before the request has been made, as long as the employer provides Weingarten rights promptly upon the employee’s request.)