Know Your Rights: The Right to Representation
If you are ever called into an interview meeting with a member of Human Resources or Fire Rescue Administration so they can investigate a situation which might result in discipline, you have specific representational rights. These rights are summarized below:
- You have the right to have a Union representative present.
- If you want a Union representative there, you must ask for him or her.
- If you do not know why Fire Rescue Administration wants to meet with you, ask him/her if it is a meeting that could result in a discipline.
- If your Fire Rescue Administration refuses to allow you to bring a Union representative, repeat your request in front of a witness. Do not refuse to attend the meeting, but do not answer any questions either. Take notes. Once the meeting is over call your Union representative at once.
- You have the right to speak privately with your Union representative before the meeting and during the meeting.
- Your Union representative has the right to play an active role in the meeting. She or he is not just witness.
These rights are called “Weingarten Rights” based on a 1975 Supreme Court decision (NLRB vs. J. Weingarten). As with all rights, if we do not use them we lose them.
This statement could save your job:
“If this discussion could in any way lead to my being disciplined or terminated I respectfully request that my Union representative be present at the meeting. Without representation present, I choose not to respond to any questions or statements.”
In the case of Garrity v. New Jersey, the U.S. Supreme Court determined that public employees could not be forced, under clear threat of discipline, to violate the principles of compulsory self-incrimination.
This decision established what have come to be called “Garrity Rights” for public employees.
The Garrity rule is similar to Miranda rights for public employees. However, the burden is on the employee to assert their Garrity rights. These rights can and should be asserted whenever an employee believes they are being investigated for possible criminal conduct.
You should say:
“If you are investigating me for violations of work rules, which are the result of allegations of criminal conduct, I wish to assert my Garrity rights before making any statements or answering any questions.”
Once an employee has asserted their Garrity rights, management must:
- Give a direct order to answer the question;
- Make the question specific, directly and narrowly related to the employee’s duty or fitness for duty;
- Advise the employee that the answers will not and cannot be used against him/her in a criminal proceeding, nor the fruits of those proceedings; and
- Allow union representation if the employee also asserts their Weingarten Rights.