Fruit Of The Poisonous Supervisor: Considerations For Considering Statements Taken In Violation Of Weingarten
It can be a refreshing treat when an investigator gets to jump into an investigation where some evidence has already been gathered, and they have at least some idea what the parties are going to say. The ultimate fruit of the investigation, the findings, are almost always much easier to reach quickly when there are prior statements to rely upon. The juicy tidbits of information in prior statements can confine the scope of investigation, streamline interview preparation, highlight key timelines and areas of inquiry, and simply put, make the investigator’s job easier. But what happens when that evidence might have come from a problematic source because it was gathered in violation of an employee’s rights? That is what this blog post is all about.
What Are Weingarten Rights?
Unionized employees, whether public or private, have what are known as “Weingarten Rights.” These rights are loosely analogous to Miranda rights, i.e. “You have the right to have an attorney present during questioning.” As articulated in the 1975 U.S. Supreme Court Case, NLRB v. J. Weingarten, subject to some limited exceptions, unionized employees have the right to have a union representative present during an “investigatory interview.” Of course, reality is more complicated than that simple statement and requires some further defining.
What Is An Investigatory Interview?
Whether a given interaction constitutes an “investigatory interview” is a multi-factor, highly fact-specific inquiry. Not every interaction between a supervisor and a subordinate qualifies. The relevant factors revolve around the reasonable foreseeability that a supervisor’s inquiry could lead to disciplinary action. Instructional meetings, coaching sessions, questions about other employees’ conduct, or one-way conversations where a supervisor merely reminds an employee of personnel policies are unlikely to be considered “investigatory interviews.” However, if a supervisor is asking an employee questions that require the employee to explain, defend, or potentially admit their own misconduct or performance issues that could lead to discipline, then the inquiry will likely be considered an investigatory interview.
Let’s take an example. In scenario one, a supervisor asked an employee what they did over the weekend. If the purpose is merely conversational, it is unlikely to be considered an investigatory interview. In scenario two, however, let’s say the supervisor has some reasonable basis to expect the employee engaged in some work-related misconduct over the weekend – perhaps making an unscheduled stop at the company warehouse to liberate some company property that the employee conveniently forgot to mark on the inventory sheet. In this case, the supervisor is not just making conversation and suspects her question might elicit some inculpatory information or a false statement that she can disprove. This likely constitutes an investigatory interview.
Similarly, a supervisor asking an employee if they know where the last shipment of widgets was sent because a customer is asking about their order is, by itself, unlikely to constitute an investigatory interview. However, if the employee’s sole responsibility is safeguarding and tracking the widgets, or if the supervisor has seen video showing the employee loading the widgets into their car, that questioning could be deemed an investigatory interview.[1]
Weingarten rights also attach when a supervisor requests a written statement from an employee about an incident where the employee’s conduct may be at issue. Additionally, conversations that are not initially Weingarten situations can evolve if the supervisor or employee begins to develop a reasonable belief that further questioning will elicit inculpating statements that could lead to discipline. Additionally, even when an employer has already made a disciplinary decision, any effort to elicit facts or evidence in support of the decision – for example, by asking an employee to sign a statement admitting to wrongdoing – Weingarten rights can re-attach.
What Happens With Evidence Collected In Violation Of Weingarten?
While there are not hard-and-fast rules for every setting, if an employee appeals the disciplinary action, some quasi-judicial bodies, administrative agencies, and arbitrators will exclude information obtained in violation of Weingarten from consideration. Thus, much like with Miranda, when it comes time for an employer to prove their case and support a proposed disciplinary action, an employer might not be able to rely upon evidence collected in violation of Weingarten rights.
How Does This Apply To Workplace Investigations?
While most investigators are not technically bound by the rules of evidence of a courtroom, they should still be mindful that their work might one day find its way there, or before an arbitrator. If a disciplinary case is based primarily on statements taken in violation of Weingarten, this could pose a problem for an employer should a judge or arbitrator decide that evidence cannot be relied upon.
The closest courtroom analogue to Weingarten is what is known as the evidentiary doctrine referred to as “the fruit of the poisonous tree.” To (over)simplify that doctrine, in criminal cases, evidence obtained in a manner that violates the law is often not admissible and will not be presented to the ultimate decider of fact. Accordingly, investigators should be wary of relying primarily or exclusively upon employee admissions that could be “tainted” because they were made in the context of a supervisor questioning an employee without representation – provided the circumstances surrounding the questioning indicate the employee’s responses likely could result in discipline. If those admissions are later excluded, it could result in the entire disciplinary case being overturned. Thus, even in the face of an explicit admission made to a questioning supervisor, investigators should consider seeking additional corroboration or alternative sources of evidence that establish the same facts as the “tainted” statement. For example, if, upon a supervisor’s questioning, without a union representative present, an employee admits they stole merchandise, an investigator could instead rely upon video evidence showing the employee entering the stockroom with an empty bag and emerging five minutes later with a full bag. If the video sufficiently independently supports the findings, it is likely unnecessary to reference the employee’s admission in the investigative report.
Until an arbitrator or court sees fit to apply the fruit of the poisonous tree doctrine to workplace investigations, it is probably also permissible to rely upon the “tainted” statement as you go about collecting other evidence. For example, an investigator could use details from an employee’s “tainted’ statement to identify witnesses who may have been present at the relevant time or to narrowly tailor a search of the employee’s email account. A savvy investigator might also consider “impeaching” an employee’s later denial of misconduct by asking if they ever made any statements to the contrary. In other words, treat a “tainted confession” as the treasure map rather than the treasure itself.
Investigations in unionized workplaces, particularly in the public sector, call for special expertise and considerations. Van Dermyden Makus employs professional, thoughtful, and strategic investigators who think about these issues all the time. When your investigation absolutely needs to hold up under scrutiny, contact the experts at VM.
