Indeed, to the extent that employers proceed directly to discipline without interviewing the employee who requests Weingarten rights, this new rule will work to the disadvantage of non-union employees. Unlike unionized employees, they cannot go to arbitration to test whether the employer has sufficient evidence supporting the discipline. This decision will complicate non-union employers lives considerably. The coworker can be anyone, even, as Member Brame s dissent notes, an employee who is personally involved in the matter under investigation. Indeed, Borgs asked that Hasan, clearly an interested party, be present.
Employers generally prefer to interview employees separately.
Imagine the problems for an employer seeking to investigate money missing from a two-person accounting department when each employee insists that the other employee be present. Workplace harassment investigations will become more complicated. It will be much more difficult keeping those investigations confidential if twice as many employees become involved. The coworker may be a relevant witness whose corroboration of the interviewed employee s story is important. Also, the standard employer option to dispense with the interview entirely if the employee requests a coworker be present runs directly counter to the employer s obligation under Title VII, another federal statute, to conduct a prompt and thorough investigation of all workplace harassment complaints.