Disciplinary Investigations of Employees – Three Names to Know

William-ConnonWhenever an employer is considering disciplining an employee for misconduct, three names from 1967, 1975 and 1985 continue to be associated with employer investigations and interrogations, in much the same way that Mr. Miranda’s name (since 1966) is associated with criminal interrogations.  The three names are: Weingarten, Loudermill, and Garrity.  These names are still very relevant. Here is a basic overview of these cases and what they mean.

1.         What are “Weingarten rights”?  This question pertains to employees of either a public or private employer, who are represented by a union.  In 1975, the United States Supreme Court in the case of NLRB v. J. Weingarten, Inc., 420 U.S. 251, upheld a National Labor Relations Board’s (“NLRB”) decision which recognized the right of employees to be accompanied by a union representative at an investigatory interview.  As the court ruled, the following three factors govern:

(1) before or during the interview the employee must make a clear request for union representation;

(2) the employee’s right to request representation as a condition of participation in an interview is limited to situations where the employee reasonably believes the investigation will result in disciplinary action; and

(3) if an employer is confronted with such a request, it has three options – (a) say no, and end the interview; (b) say yes, and delay questioning the employee any further until the union representative arrives; or (c) ask the employee to choose between continuing the interview without representation, or ending the interview.

The employer is free to carry on its inquiry without interviewing the employee if the employee has opted to exercise his/her Weingarten rights.  Thus, an employee who has opted to have no interview, has opted to forego any benefits that might be derived from one.  The employer would then be free to act on the basis of information obtained from other sources.  Connecticut’s State Board of Labor Relations has recognized this right under the Municipal Employee Relations Act (MERA)..  See, e.g., City of New Haven, Decision No. 4720 (2014)

2.         A “Loudermill hearing” refers to a due process requirement applicable to public employers, which also stems from a United States Supreme Court decision in Cleveland Board of Education v. Loudermill, 470 U.S. 545 (1985).  That decision stands for the proposition that public employees have a “property right” in continued employment and that they cannot be deprived of that right by the state without due process.  Mr. Loudermill was a security guard.  On his job application, he stated that he had never been convicted of a felony.  The employer subsequently discovered that he had been convicted of grand larceny.  The Cleveland Board of Education dismissed him for dishonesty in filling out the job application.  He was not offered an opportunity to respond to the dishonesty charge or to challenge the basis for his dismissal.  The Loudermill case involved a state statute which required that an employee could only be terminated for cause, and entitled the employee to administrative review of his dismissal.  The basis of Loudermill’s federal court suit was that the statute in Ohio was inadequate because it provided no due process prior to his removal, thus depriving him of liberty and property without the due process afforded by the Constitution.  The principle recognized by the Court was that an individual must be given an opportunity for a hearing before he is deprived of any significant property interest, thus some kind of hearing prior to discharge of an employee who has a constitutionally protected property interest is required.The pre-termination hearing does not need to resolve whether or not there was just cause for the discharge, but it should be an initial check against mistaken decisions.  Is there a reasonable basis for making these charges against this employee and taking the proposed action?  The essential elements of this very informal hearing are notice and an opportunity to respond.

3.         What are “Garrity rights”?  This question arises in the context of public employers and employees.  The New Jersey Attorney General, in 1961, investigated allegations that traffic tickets were being “fixed” in the New Jersey townships of Bellmawr and Barrington.  An investigation that focused upon six employees then ensued.  After each was told that anything they said might be used against them in a criminal proceeding, they were told that if they exercised their constitutional right to avoid self-incrimination by refusing to answer, they would be terminated.  They did not want to lose their jobs so they answered the questions.  Their statements were used in their prosecution and they were convicted.  The question before the United States Supreme Court in 1967 was whether an employee’s statements made under threat of termination were in violation of the Fifth and Fourteenth Amendments.  The Court reasoned that where police officers being investigated were given the choice between either incriminating themselves or forfeiting their jobs, and the officers then gave confessions, the confessions were not voluntary but were coerced and the Fourteenth Amendment prohibited their use in subsequent criminal prosecution in state court.  The convictions were overturned.  Garrity v. New Jersey, 385 U.S. 493 (1967).

The question is not whether an employer has the right to investigate employee misconduct but, rather, whether a prosecutor can use statements from an employee who is compelled to answer the questions, in a later criminal prosecution.  Thought should be given to the consequences of extending Garrity rights or not extending Garrity rights.

If, for example, a public employer has sufficient proof of just cause for termination, without the need for an admission from the accused employee, then the possibility of criminal prosecution is not compromised by an employer’s investigation which allows the employee to refuse to answer.  On the other hand, if the employer compells the employee to answer fully and truthfully to the investigation conducted by the employer, or else be deemed insubordinate and subject to further discipline or termination, such evidence will likely be unavailable to a prosecutor later seeking conviction, if the conduct also constituted a violation of a criminal law.  The employer will then need to provide what is colloquially called a “Garrity warning,” namely, that there is no right by the employee to remain silent with regard to an employee investigation, but that the answers given cannot be used against the employee in a criminal prosecution.