Do Weingarten rights apply where the investigation is part of the employers sexual harassment policy and procedures?
Yes, at least where the person being questioned is an alleged harasser or is alleged to have aided or abetted another person’s harassment. Do job performance reviews or evaluation conferences give rise to Weingarten rights? Possibly. We would argue that these rights apply where the employee’s performance has been under scrutiny and the employee reasonably believes that his/her job is in jeopardy. However, the right is unlikely to apply to classroom observations. How about “counseling” sessions with supervisors regarding absenteeism or drug or alcohol problems? Again, possibly, especially where the employer is seeking information from the employee or has given the employee a reasonable basis for believing that discipline or termination might result from the problems under discussion. What constitutes a “reasonable expectation” that discipline may result? The test is objective, not subjective. The employee’s belief must be a reasonable assessment of the objective circumstances. For examp
