National Labor Relations Board: Nonunionized Employees Have a Right to Bring a Coworker to Discipline

In a recent case, the N.L.R.B. decided that nonunion workers have the right to have a coworker with them in meetings that could lead to them getting in trouble. This is a big change from the past. The case was brought by two employees from the Epilepsy Foundation who said they were fired for criticizing their boss. One of them was scared to meet with their bosses alone, and when they asked a coworker to come with them, the bosses said no and the employee was fired for refusing to meet with them alone. The board decided that both employees should be hired back with back pay. They found that Hasan was fired because he helped his coworker write a complaint about their supervisor and complained about the foundation’s actions. They also found that Borgs was fired for asking to have a coworker at his meeting with management. Even though the dissenting members disagreed, the majority said that the employer’s rights are not violated by allowing employees to have a coworker at disciplinary meetings. In the past, the National Labor Relations Board tried to give nonunion employees the right to have a coworker with them in a disciplinary meeting. Some courts approved this, but others didn’t. Now, the board is trying to do it again. The Epilepsy Foundation is planning to fight this decision. It’s hard to say how the courts will react because they have different opinions on this issue. The Epilepsy Foundation opinion gives employees the right to have a coworker present during disciplinary meetings if they ask for it. But the coworker can’t argue or stop the discipline from happening. Employers should still do thorough investigations before disciplining or firing employees, or they could get in trouble for breaking anti-discrimination laws. The decision made by the Epilepsy Foundation might make it harder for employers to keep confidential information during investigations into harassment and theft. This could make the investigations less effective and also lead to more legal claims against employers. To protect themselves, employers can emphasize the importance of confidentiality to employees and take detailed notes during interviews. They can also add check-off boxes to forms to record whether an employee requested a coworker to be present during disciplinary meetings. Before making any changes, employers should talk to a lawyer and consider the possibility of the decision being overturned in the future. This column was written by the Labor and Employment Law Section. The purpose of the section is to promote the principles of duty and service to the public, improve the justice system, and advance the study of law.

Source: https://www.floridabar.org/the-florida-bar-journal/national-labor-relations-board-nonunionized-employees-have-a-right-to-bring-a-coworker-to-discipli/