Loudermill & Weingarten – A Brief Refresher

As most public employers are already aware, some public employees enjoy "property interest" rights in their job. These due process rights are explained in the U.S. Supreme Court’s Loudermill decision. Public Employers are required to give an employee notice of the charges against him or her and an opportunity to respond before the employer can finalize and implement a termination or suspension.

Although "at-will" public employees are not considered to have "property interest" rights in their employment, they are afforded a pre-disciplinary hearing in any situation which may be considered stigmatizing to the employee and be recorded in the employee’s personnel file. This is considered a "liberty interest" and the at-will employee must be given the opportunity for a "name-clearing" hearing involving notice of charges and the right to respond to those charges.

It is important to note that both the Loudermill Hearing and the Name-Clearing Hearing are about process and not outcome. There are often important reasons for creating clear and factual records of dismissal and discipline and facts should not be omitted simply because they are unpleasant or stigmatizing to the employee. In either case, the hearing may be informal, as long as adequate notice is given the employee.

What is stigmatizing information?

When the employee’s reputation may be harmed by being accused of dishonesty, immorality, criminal behavior, sexual harassment or receiving kickbacks. Charges of incompetence, negligence and insubordination do not rise to the level of stigmatizing. However, if in doubt – err on the side of caution and conduct a hearing prior to any dismissal, suspension or demotion.

Under the Weingarten Rule and Washington State Law, where a labor organization has collective bargaining rights, the employee is entitled to representation by his or her collective bargaining representative during a disciplinary interview.

Weingarten principles provide that the employee must reasonably believe that the interview will result in disciplinary action for the right to representation to exist; the right to representation only exists where the employer is eliciting information from the employee and where the employer is eliciting information in written form. The employee must request such union-representation, the labor organization, not the employer or the employee selects the Weingarten representative, and the right is be represented by the employee’s labor organization only, not the employee’s private attorney.

The exercise of the right to representation cannot unduly interfere with legitimate needs of the employer.

Weingarten does not require union representation every time you wish to talk to a subordinate employee, nor is it applicable as part of a performance evaluation. If the employee to be interviewed is merely a witness and not subject to discipline, Weingarten rights would not be triggered.

An employee who is subject to an interview under Weingarten is entitled to a single union representative and not multiple union representatives. If the employee does not request the presence of the union in advance, but decides to do so after the interview has begun, adjourn the meeting and allow time for the employee to secure union representation.

Should the Weingarten process be followed during a Loudermill Hearing?

Typically, Weingarten rights do not apply to a Loudermill Hearing. Loudermill entitles employees to the notice of charges against him or her and the opportunity to dispute the charges after a disciplinary determination has been made. In most cases, additional questions are not asked during the Loudermill Hearing which would trigger Weingarten.

The consequences of not following proper Loudermil and Weingarten procedures could result in an unfair labor practice charge and/or significantly impair the employer’s position in the event of arbitration.

 
[ previous article ]  [ return to top ]  [ next article ]