Question for Dis lawyers, conversational

[LuvOrlando]

If an employee is brought in to be questioned by some kind of corporate investigations group does that person have a right to request counsel present during the questioning and ask to postpone the interview until that time OR can that employee be deemed non-compliant/uncooperative and terminated? The company is at will.

There are lots of ways to view this that make sense for both sides of the issue but there must be legal precedents. I'm just curious, the topic came up in conversation recently and it seems to be a very messy issue that very well could have many different answers depending on the State. Thoughts are invited, and if someone is a lawyer who has seen this please say so. FYI this is not a request for legal advice for myself or anyone I know, its just conversational, I don't even work.

 

[bballmom56]

I can only tell you that my DH had this happen to him. There was a complaint filed (DH was not told what the complaint was or who filed it although he had some idea). He wanted to bring a lawyer with him and HR would not allow it. This was a private employer and DH does have some legal job protection status. It turned into a three ring circus with the employer paying close to $50,000 for an investigation by an outside person to find there was no merit at all to the complaint. And DH still does not what the complaint was exactly!

 

[snykymom]

Most people are "employees at will" which means that they can be terminated for any reason or no reason, except of explicitly illegal reasons like discrimination or whistleblowing. Other than that, if there is no specific contract or union or civil service protection, the employee generally has few rights.

There is no "right to counsel" in a private employment situation, since there is no power of the state involved. Of course, this is barring specific state statutes granting that right. The employer can say yes, but they also can say no. And yes, the employee could be terminated for failure to cooperate, although the employer doesn't even have to say why.

 

[The Mystery Machine]

If an employee is brought in to be questioned by some kind of corporate investigations group does that person have a right to request counsel present during the questioning and ask to postpone the interview until that time OR can that employee be deemed non-compliant/uncooperative and terminated? The company is at will.

There are lots of ways to view this that make sense for both sides of the issue but there must be legal precedents. I'm just curious, the topic came up in conversation recently and it seems to be a very messy issue that very well could have many different answers depending on the State. Thoughts are invited, and if someone is a lawyer who has seen this please say so. FYI this is not a request for legal advice for myself or anyone I know, its just conversational, I don't even work.

Here is the thing, you if you are being called to the carpet you know what it is about.

If it is over criminal activity yes you should hire an attorney.

If is over sexual harassment then hire an attorney.

If you are being threatened, railroaded, guilty or innocent then it is in your best interest to hire an attorney whether you are fired at will or not if it is major serious.

Now if it is something that is simple and you are 100% innocent you can speak with the "investigators" and then decide if you want to speak candidly or have the need for an attorney.

In a serious situation the chance of keeping your job is slim and none anyway.

Also if you are union there are probably different rules for that as well.

My mom had to give a deposition as a nurse for a situation at her work. While she did not care to do it, she had no choice as she was issued a summons to do it. This was through the courts and not some "investigative group".

 

[bballmom56]

Here is the thing, you if you are being called to the carpet you know what it is about.

Not in the case of my DH.

 

[The Mystery Machine]

Not in the case of my DH.

In general. Obviously that is not to be the case every time.

 

[LukenDC]

There are rights called Weingarten rights that permit employees to request the presence of a co-worker of their choice in an investigational meeting where they have reason to believe that they will face disciplinary action. These rights were initially extended to union employees, but over the years the National Labor Relations Board has extended Weingarten rights to employees at private, at-will employers as well.

The applicability of Weigarten rights to private employers varies with the composition of the Board since it's a political hot potato. In recent years, the Clinton-era Board extended Weingarten rights to non-union employees, but the Bush-era Board quickly revoked them. I'm not sure where the issue stands with the current composition of the Board, which is likely to be sympathetic to Weingarten rights for non-union employees.

 

[LuvOrlando]

LukenDC, thank you so much for that bit of info. I'm not from a union heavy area so I am unfamiliar. I hadn't heard of the Weingarten Rights but the idea is fascinating. I suspect that could be used as an open door to challenge things further if an employee knew enough to ask the questions and found a talented sympathetic attorney... one smart & hungry to make a name for him or herself.

Mysterymachine, I understand what you are saying but that isn't necessarily true. Often in house investigations, especially anonymous complaints, cast a wide net to gather as much info as possible. No-one is told anything ahead of time, which must be very scary for whoever is getting called in, I know it would petrify me.

Snykymom you may well be right, but our courts are forever changing and now that jobs are so hard to find I could easily see someone willing to 'go to the mattresses' over something like this. Same goes for young attorneys fresh out of school having a hard time scoring a nice job able to pay back the loans. A nice article in a legal journal could go far.

Bballmom56, that must have been very scary for your DH and you. I know I wouldn't ever want to be on the busy end of that. Sometimes people just make complaints to stir the pot and upset others... its not right but it happens.