Friday, September 22, 2023
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Supreme and Federal Court Rights

As a member of the AFGE Local 17 bargaining unit, you are protected by many rights under our negotiated contract. You are also protected by legal rights that apply to either all government employees or to all unionized employees. Special thanks to AFGE Local 476 for putting together the guide below.

Weingarten Rights

If you think a conversation with management may lead to disciplinary action, ask for a Local 17 steward or officer. It’s your “Weingarten right.”

You can ask at any time in the discussion that your Union representative be present. Your Union is here to support you.

But YOU have to ask. Management does not have to tell you about this right.

This is one of your “Weingarten Rights,” named for a Supreme Court decision, NLRB v. J. Weingarten, Inc. (1975). It applies to investigative interviews where you are asked to answer questions that you think may lead to a disciplinary action. You do not have the be the subject of an investigation.

The Weingarten case was based on a lawsuit that resulted from a lunch counter employee, Laura Collins, being accused of stealing. Her employer claimed that she had taken a large box of chicken but had paid for only a small box. Collins had actually taken only four pieces of chicken–the amount that goes in a small box–but put them in a large box because there were no more small boxes. Collins was cleared of any charges of wrongdoing. During her interview with the manager and a loss prevention specialist, Collins had asked several times for her union rep or shop steward. Her management would not permit this. Collins told her union steward about it and the union filed an unfair labor practice charge against the company. When the matter reached the Supreme Court, the Court decided that an employee is entitled to union representation for investigatory interviews.

You have the right to:

  • Ask for a Union representative at any time before or after the meeting begins.
  • Stop answering questions once you have asked for a Union representative, until your representative is present.
  • Rely on your own judgment about the possibility of discipline.
  • Rely on assurances from officials who have the authority to assure you that there is no possibility that the discussion will lead to discipline.
  • Not be coerced or intimidated into giving up your right to representation.
  • Not be punished for requesting a representative.

You do not have the right to:

  • Demand representation at a routine meeting, including a performance review or counseling session, or for a one-way announcement, such as receipt of a warning or a decision.
  • Unreasonably delay the interview to wait for a particular representative.
  • Demand representation by anyone other than a duly appointed Union steward, including a personal lawyer.
  • Refuse to answer questions once your representative is present, or if you have not asked for a representative.
  • Lie.
  • Have the representative speak for you.

Once you ask for a Union representative, the supervisor or investigator must:

  • Grant the request and delay questioning until the representative is present, end the interview immediately, or offer you the choice of proceeding without representation.
  • Inform the Union representative about the subject of the interview, including the type of misconduct under discussion.
  • Allow you to speak privately with the Union representative before beginning questioning.

Your representative may:

  • Consult with you privately before the interview.
  • Attend the interview with you.
  • Ask questions, and ask for clarification of questions during the interview.
  • Advise you on how to answer questions and object to improper questioning.
  • Help in providing relevant information.
  • Ensure you are not harassed or intimidated.
  • Take notes during the interview.

You representative may not:

  • Disrupt an investigative interview.
  • Answer questions for you.
  • Record or tape an interview without management's permission.
  • Bargain over the nature or purpose of the interview.

Garrity Rights

As a public employee, you have the right to not be compelled to incriminate yourself by your employer. These rights are based on the 1967 United States Supreme Court decision Garrity v. New Jersey. Garrity Rights apply only to public employees, because they are employed by the government itself. (Private sector employees are protected by the 14th Amendment when they are questioned by the government.)

You do not have to do anything to “invoke” your Garrity rights. They are triggered when you are told that if you do not answer the questions during an investigation, you will be subject to being fired (or “to disciplinary actions up to and including termination”).

The federal government is required to inform you of your Garrity rights. You may be given a document called a Kalkines Warning instead of a Garrity warning because the requirement is based on a 1973 case, Kalkines v. United States.

A Garrity or Kalkines warning may look like this:

You are hereby ordered to fully cooperate with the investigating official(s). Your failure to cooperate will create an objective and subjective fear of termination. You have the following rights and responsibilities during this investigation:

  1. You have the right to be informed of the allegations involved.
  2. You will be asked questions specifically directed and narrowly related to the performance of your official duties.
  3. Statements made during any interviews may be used as evidence of misconduct or as the basis for seeking disciplinary action against you.
  4. Any statements made by you during these interviews cannot be used against you in any subsequent criminal proceeding, nor can the fruits of any of your statements be used against you in any subsequent criminal proceeding.
  5. If you so request, a person of your choice may be present to serve as a witness during the interviews.
  6. If you refuse to answer questions relating to the performance of your official duties, you will be subject to dismissal.

Garrity rights apply to potential criminal matters, not to administrative discipline. These rights apply only to statements, not to actions such as breathalyzer tests, drug tests, or other physical evidence. They don’t apply to false statements, either.

Garrity rights do not apply to statements you have volunteered to make without being ordered to do so. They do not protect you from criminal prosecution if the evidence is found through some way other than by your statements.

Read more about Garrity rights at GarrityRghts. Also read more about your Kalkines Rights, below.

Loudermill Rights

Thanks to your Loudermill rights, you are entitled to due process before you can be dismissed from their job. These rights are based on the 1985 United States Supreme Court decision Cleveland Board of Education v. Loudermill. Generally, these rights require a public employer to offer to have a “pre-termination” meeting with the affected employee; at this meeting, the employer presents their grounds for termination, and the employee is given the opportunity to respond. These rights are met when you are given a notice of proposed action, such a a notice that management plans to terminate your employment in 30 days. The number of days of advance notice and your appeal rights are protected by law and by our contract.

Kalkines Rights

Your Kalkines rights are more of a warning than a right. You may have a right to immunity from criminal prosecution if you cooperate in an investigation. More often, this is phrased in the reverse: If you are given immunity from criminal prosecution, you are required to cooperate in the investigation. Your cooperation does not exempt you from administrative or civil actions, only criminal prosecution, so the information solicited could be used to fire you. If you do not cooperate, you may be fired. You must receive a Kalkines Warning if it applies. Your right to the Kalkines Warning is based on a Court of Claims decision in Kalkines v. United States. In that case, a federal employee was fired for not cooperating with an internal investigation. The court found that the employee had not been sufficiently advised of his immunity to criminal prosecution, nor sufficiently warned that he would be fired if he refused to cooperate.

A Kalkines Warning may look like this:

You are being questioned as part of an internal and/or administrative investigation. You will be asked a number of specific questions concerning your official duties, and you must answer these questions to the best of your ability. Failure to answer completely and truthfully may result in disciplinary action, including dismissal. Your answers and any information derived from them may be used against you in administrative proceedings. However, neither your answers nor any information derived from them may be used against you in criminal proceedings, except if you knowingly and willfully make false statements.

For more information, see Garrity Rights, above.