In Epilepsy Foundation , Arnis Borgs, a non-union employee, was asked to meet with the Foundation s Executive Director, Christine Loehrke. Because Mr. Borgs had reason to believe the meeting might lead to discipline, he requested a co-worker be present during the meeting. Applying this new rule to Mr. Borgs, the Board concluded Mr. Borgs had been unlawfully terminated. While the NLRB s decision extends a new right to non-union employees, it does not require employers to allow employee representatives in all situations. The Weingarten right is only triggered when the employee specifically requests a witness.
Employees are free to proceed without any representation if they choose.
Finally, the Epilepsy Foundation decision does not require non-union employers to inform employees of this new right or to provide a representative in the absence of a request. Nor does the employee have a right to representation during a meeting at which he or she is simply advised of a decision already made by the employer to impose discipline. The Board s decision only impacts situations where an employee reasonably believes he or she is at risk of being disciplined as a result of the investigatory interview. Offer the employee the opportunity to meet unassisted or forego the interview altogether. However, once a request for assistance has been made, an employer may not continue the investigatory interview without a representative being present unless the employee subsequently agrees to continue without the representation.