By Chris Avcolie,
If you are like me, you have seen countless police dramas on television and at the movies. Whenever the police take the suspect du jour into custody, they read the well-known Miranda Warnings. Most Americans can probably recite the standard Miranda Warnings after decades of media reinforcement: “You have the right to remain silent. Anything you say can and will be used against you…” We all know what is supposed to come next, right?
While the right to have the assistance of counsel for one’s defense in a criminal case is a cornerstone of our concept of due process, many Americans are surprised that the right to counsel does not apply in all situations where fundamental human rights are at stake. Case in point: we have almost no right to counsel when our rights at work are in jeopardy. Unless we are members of a labor union, an employer can investigate our conduct, force us to answer questions that might put our employment at risk, isolate us from co-workers for questioning, accuse us of misconduct or sub-standard performance without basis, and impose discipline or terminate our employment entirely without once allowing us to consult with a lawyer.
Further, while defense attorneys are provided free of charge to indigent criminal defendants, employees often have no way to engage employment counsel at an affordable price. Our right to defend ourselves from baseless criminal prosecution is considered important enough to justify publicly subsidized representation, but our right to protection from over-reaching and oppressive employment practices that can terminate our livelihood is not deemed of similar significance. I disagree. For most American workers, the right to counsel at work is, “You have no right to speak with an attorney or to have one present when we investigate or terminate you, even if you can afford one. If you cannot afford an attorney…Tough luck! In that case you cannot even speak with an attorney outside of work. And by the way, you can’t have a lawyer or even a co-worker present at the disciplinary meeting either!”
YOUR EMPLOYER HAS ALREADY LAWYERED UP!
I have observed in prior articles, “Why Do I Need To Understand Workplace Legal Issues?”, that American corporations collectively spend billions each year on top notch employment attorneys to help them manage their employees. American workers, in contrast, are able to spend very little on skilled employment lawyers to advise them on how to manage their employers. There is a gross imbalance in both information and power between employers and employees. This disparity in power and information creates an imbalance in most workplace disputes. If employees had a right to legal counsel in employment matters, the inequitable disparity in knowledge, resources, and power would be greatly ameliorated.
Why the second-class status for employment rights? According to the United Nations General Assembly, the right to work is a basic human right. The UN has adopted the Universal Declaration of Human Rights, which states in relevant part: “Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.” UDHR Art. 23 Sec.1. In the United States, these work-related rights are given short shrift. While all would agree it is a necessity to work and to earn a living, we provide very few protections to our right to work and to continue working under reasonably humane conditions.
Further, the right to work could mean life or death for many Americans. A public health and epidemiology researcher named M. Harvey Brenner, PhD, has published numerous studies focused on the relationship between economic well-being and community health. Dr. Brenner has held positions in public health and epidemiology at institutions including the University of North Texas Health Science Center, Hanover Medical University, Johns Hopkins University and Yale University. Dr. Brenner is quoted as stating that a figure of 40,000 U.S. deaths for every 1% rise in unemployment is still a “good rule of thumb.” This statement is based on his work dating back decades. While Dr. Brenner’s work is far from universally accepted there is a clear correlation between unemployment rates and mortality.
My contention here is simply that the UN and Dr. Brenner are correct. The right to work and to be free from unnecessary unemployment is indeed a fundamental human right. Accordingly, these employment rights should be protected. One way to ensure their protections would be an expansion of employee’s right to counsel in employment matters.
WEINGARTEN RIGHTS SHOULD BE EXPANDED OUTSIDE OF UNION CONTEXT
One sector of the American workforce already has some limited right to representation in employment disputes. Unionized workers have a right to have union representation (not necessarily legal counsel but some union affiliated representative, usually another worker) present at any meeting that may reasonably be expected to involve disciplinary action. This limited right to union representation was established by the U.S. Supreme Court in N.L.R.B. v. J. Weingarten, 420 U.S. at 262. The Supreme Court held that the right to representation in investigatory meetings with the employer was based on §7 of the National Labor Relations Act (NLRA), which states that “employees shall have the right … to engage in … concerted activities for the purpose of mutual aid or protection.” Weingarten, at 267 (quoting NLRA §7). Failure to provide Weingarten rights to eligible employees constitutes an unfair labor practice under §8(a) of the NLRA. Id. at 260.
While Weingarten rights are currently only available for unionized employees, that has not always been the case. In 2000, in the NLRB extended the right to representation to include the right of nonunion workers to have co-workers present during an investigative interview. This was determined because even non-unionized employees have §7 rights, i.e. the right to engage in activities of mutual protection. Four years later, the NLRB overturned this rule and decided that the employer’s right to conduct efficient investigations outweighed the employees right to representation.
This current rule reflects a lack of consideration for the fundamental human rights of employed persons. Only an impoverished view of the human rights of workers can render the conclusion that the relative loss of “efficiency” in conducting workplace investigations can outweigh a working person’s right to representation when their livelihood, career, and economic fortune are at stake.
While the NLRB has recently signaled openness to reconsidering the application of Weingarten rights outside of the union context, the right to have actual legal counsel present when your job is at risk remains distant. Another related area of employee representation includes the right of an employee to have information about the employer’s investigation before the investigatory meeting. In other words, as the law stands, employers can summon a non-union worker into an investigatory meeting where the purpose is to gather facts that could lead to the employee’s termination for cause, without telling the employee (or her union representative if applicable) what the issue is, whether the employee has been accused of misconduct, or even what information will be sought!
Since employment rights are human rights, workers should not be placed in jeopardy of losing their jobs without due process. Employees should be entitled to have reasonable notice before any investigatory or disciplinary meeting. Employees should have a right to know what the meeting is about and what information will be sought ahead of time. Further, employees should have a right to representation by either legal counsel or at a minimum, if time does not permit summoning counsel, a fellow employee to represent the employee’s interests.
It is important to remember that while the law does not require employers to provide these fundamental due process rights to employees, there is also no law that prevents employees from demanding them. Whether in pre-employment negotiations or during an actual investigation, employees can and should advocate for themselves to receive fair treatment even if the law is not yet in place to support those rights. While most working people would agree that a right to counsel as well as other basic due process rights should be provided in every employment conflict, few are actually advocating for that right. Let’s start demanding what is right!
WHAT DO I DO IF I AM CALLED TO A DISCIPLINARY MEETING AT WORK?
Since you do not have a right to counsel at work how should you handle a disciplinary or a termination meeting with management? First, remember that because there is no current right to counsel at work you cannot demand a lawyer be present before you meet with your employer. You can request your attorney be present and the employer can grant the request, or not, at its discretion. I recommend requesting your attorney be present in writing by email or other means so you can substantiate the employer’s refusal to allow your attorney to be present later. While your employer can require you to attend meetings with whomever they choose without your lawyer, it’s not a good look to deny someone the right to their legal counsel.
While you can request to have your attorney present, the employer is likely to deny that request. You will have to attend the meeting anyway. Once the request to bring employment counsel is rejected you can ask to have a co-worker attend on your behalf. Again, except for union workers you have no right to have a co-worker present at a disciplinary meeting. However, this request may be more palatable to the employer, and it will occasionally be granted. Your co-worker can act as a witness to what was said at the meeting and can provide moral support if not advocacy.
Finally, document everything said at the meeting in writing. Take detailed and explicit notes. While employers can deny you an attorney at work meetings, they cannot stop you from consulting an attorney on your own time. When you do speak to an attorney, having a detailed account of everything said at the meeting will be a great help to your lawyer when you are eventually able to consult with one.
WHAT TYPE OF WORKPLACE SITUATIONS REQUIRE LEGAL ADVICE?
So when do you need to request a lawyer at work? The number of potential workplace issues that can arise are of course legion. What type of situations should trigger a search for counsel? An affirmative response to one of the following questions should lead you to consider talking to an attorney as soon as possible:
• Is your employer accusing you of misconduct?
• Is your employer accusing you of poor performance?
• Is your company experiencing a re-organization?
• Have you noticed that you are being treated differently at work than you were previously?
• Do you have a new supervisor or manager who is changing your work environment?
• Have you been treated differently than other co-workers in similar positions? Why?
• Have you lost benefits, commissions, or bonuses because of changes in your employer’s policies?
• Have you been disciplined unfairly at work?
• Is your employer asking you to sign documents touching on your work environment such as non-disclosure agreements, arbitration agreements, or non-compete agreements?
• Has your employer issued a new Employee Handbook with different policies?
• Have you experienced or observed discrimination or harassment in the workplace?
• Have you witnessed or experienced workplace bullying or intimidation?
• Have you been placed on a performance improvement plan (a “PIP”)?
• Are you being “set up to fail” by a supervisor or manager?
• Have you been disciplined or singled out unfairly?
• Has your employer suggested or intimated that you should retire or resign?
• Have you been treated differently after a workplace injury or after asking for accommodations for a medical condition?
• Is there any new or unusual union activity at your workplace?
• Do you need to request family medical leave for yourself or a seriously ill loved one?
• Has a negative employment action been taken against you?
• Have you applied for a job and not been hired?
• Have you been fired?
• Have you applied for a promotion and not gotten it?
• Have you been demoted?
• Have you suffered a cut in pay or benefits?
• Have you not received the same increase in pay or benefits as similar employees?
• Have you received a poor performance evaluation unfairly?
• Do you need a workplace accommodation because of a medical condition or disability?
While this list is not exhaustive of the circumstances where you might need to consult an employment attorney, if you observe one or more of these issues at work, you should seek advice right away. When employees obtain counsel early in their employment before any serious adverse action is taken by the employer, a skilled employment attorney can not only help to resolve workplace conflicts before they become too severe, but they can also help to avoid certain conflicts and issues. Increasingly, I am noting that employees are retaining my services to help advise them on how to preserve their job and avoid difficult employment conflicts, not just to litigate against their employer after the working relationship has broken down irretrievably.
STAND UP FOR THE RIGHTS YOU DO NOT YET POSSESS!
While the right to have legal counsel provided to employees in workplace conflicts has not yet been recognized at law, it is important that that right take root in our collective and individual consciousness first. In order to change the status quo, we need to think differently about the employment relationship. We need to challenge the status quo at every turn to effect change. I speak to many working people and small business owners every day as an employment attorney. Although they each have their own concerns and challenges, one thing they all have in common is a belief that the law should ensure fairness and equity in the workplace for all.
Nelson Mandela famously said, “To deny people their human rights is to challenge their very humanity.” As the UN has determined, the right to work and to be free of oppression at work is a fundamental human right. Without timely and available legal counsel, we cannot hope to realize the dream of fairness and equity in the American workplace. Let us defend our humanity by asserting a right to legal representation at work whenever possible.
If you have any questions about your need for a lawyer in a workplace dispute, please contact Carey & Associates, P.C. for a free consultation at firstname.lastname@example.org.
Listen to Podcast: You Have the Right to Counsel At Work