A recent National Labor Relations Board case gave non-union employees the right to have a co-worker representative present during an investigatory interview.

According to Washington Employers, an industry group representing employers, there are a number of impacts on an employer’s ability to manage employee investigations and discipline.

• The right to have a co-worker present applies only to meetings or interviews that the employee reasonably believes will lead to discipline at some point. “Investigatory interview” does not include meetings at which an employer has already decided to impose discipline.

• The employee must ask for representation. An employer is not required to advise the employee of this right.

• An employer cannot conduct a meeting without the presence of the requested co-worker representative. When confronted with an employee request for a co-worker to be present, the employer may cancel the meeting and proceed with its investigation without interviewing the employee.

• The employer is not required to negotiate with the co-worker representative. The co-worker is there to assist the employee but is not entitled to disrupt the meeting or investigation.

• There is no right to have an attorney present.

• Supervisors and managers are not covered by the NLRB decision.

When in doubt, Washington Employers urge employers to err on the side of allowing a co-worker to be present during the investigatory interview. The procedural requirement is minimally burdensome compared to the potential for back pay and reinstatement of an aggrieved former employee.