#1  
Unread 01-03-2005, 08:18 AM
needahero
 
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Default can employee have a witness?

OK- I can't think of a catchy subject line. One of our hourly employees told her manager she is bringing a co-worker to her performance review as a witness. I have found no laws that allow for this and it seems like a bad idea. Would you allow an employee to bring a fellow co-worker to a formal performance review?
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  #2  
Unread 01-03-2005, 08:23 AM
Don D
 
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Default RE: can employee have a witness?

The employee does not have a right to bring another person to a performance review. In a union environment, and until recently even in a non-union environment, an employee HAS the right to bring the employee of their choice to a meeting that they reasonably think might result in discipline. But, that would not include an ordinary sit-down performance review. In no event, under federal regulations, does an employee have the right to insist that someone accompany them to their annual review. Before others jump in and say "Why not, what's the harm, let her do it", let me say, do not allow it. The company is in charge of such events, not the employee.





**When we do for others what they should do for themselves, we disempower them.**
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  #3  
Unread 01-03-2005, 08:25 AM
Crout
 
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Default RE: can employee have a witness?

Absolutely not, unless the employee belongs to a labor union, AND the purpose of the meeting is not just to review preformance, but could also result in disciplinary measures being taken against the employee.
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  #4  
Unread 01-03-2005, 09:00 AM
mwild31
 
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Default RE: can employee have a witness?

In reviewing my copy of the Washington State Employment Law Letter, August 2004, the NLRB did rescind Weingarten rights for non-union employees, but it specifically mentions these rights as it relates to a non-union employee bringing in someone during an interview that could lead to discipline. In my readings, I can't find anything that says an employee has the right to bring someone in for a Performance Review, but I can't find anything that says they can't either. I guess my concern is this: The NLRB loves to (or at least it did when Clinton was appointing folks) interject itself into non-union companies & they love the part of the Act that says that ALL employees have, "the right to self-organization to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining and other mutual aid or protection." It's the last part, "...and other mutual aid or protection" that's concerning to me. I don't want to rush to caution here, but you should look at this request and evaluate/determine why the employee is asking for another to be present. Does the employee feel threatened at work? Does the employee feel as though management is hostile to them? Does this other employee (that's asked to be present or has volunteered to be present) have a "beef" with the company and think there are unfair labor practices occurring?

Ultimately, I agree with Don, I wouldn't allow it, but that's because I know the people involved at my work & what's motivating them (we're a small company). Before you make your decision, play out each scenario (allow or not allow) in your head and take it a couple of steps down the road (meaning, does the ee retain an attorney or not) and see how it sits.

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  #5  
Unread 01-03-2005, 09:10 AM
Whatever
 
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Default RE: can employee have a witness?

I'm curious. Why would an ee feel they need a witness for a performance review?
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  #6  
Unread 01-03-2005, 09:22 AM
Don D
 
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Default RE: can employee have a witness?

x:-) It's been over a year since I responded directly to you, and I hesitate to do so now, remembering the stings of earlier replies in response to yours; however, there is absolutely no need to go through the anal exercise of trying to figure out what might be motivating an employee to make this request. Weingarten is history for private industry and even if it were not, this is not a Weingarten matter since it does not involve the potential for discipline. It matters not one whit what might be motivating the employee or what burr might be under her saddle. Companies run companies and it's time we recognized that and quit caving to the every whim of every air-headed request or demand from every employee. Tell the employee that it is not allowed and move on. If she gets an attorney and the attorney is ill-advised enough to pursue this particular matter, let 'em go for it. Once you get into the routine of considering 'Oh boy, what do I do about this?' it's time you hired two assistants to do your regular work. This is a simple matter of knowing how to respond to a hollow request. It reminds me of the employees who say, "You HAVE to do this or YOU ARE REQUIRED to do that".





**When we do for others what they should do for themselves, we disempower them.**
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  #7  
Unread 01-03-2005, 09:24 AM
Don D
 
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Default RE: can employee have a witness?

[font size="1" color="#FF0000"]LAST EDITED ON 01-04-05 AT 04:20AM (CST)[/font][br][br]Probably because she realizes her performance has been sub-par all year long and she's about to be criticized and she feels like having a witness of her choice in the room will gain her some leverage. And because she thinks threatening behavior will gain her an advantage.

Weingarten Rights have nothing to do with employees discussing wages. Those are known as basic rights and are protected by the NLRA. Weingarten Rights only relates to an employees right to have another employee present at a time when the employee reasonable assumes that discipline might result from the meeting.



**When we do for others what they should do for themselves, we disempower them.**
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  #8  
Unread 01-03-2005, 10:50 AM
mwild31
 
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Default RE: can employee have a witness?

[font size="1" color="#FF0000"]LAST EDITED ON 01-03-05 AT 04:59PM (CST)[/font][br][br]I too hesitate to respond to you considering your stings and attacks, but I will boldly go forward as you have. I respectfully, disagree with you. In no way did I try to suggest an "anal exercise", merely contemplation of the situation - that's all. In fact, I did say that I ultimately agreed with your assessment. As to Weingarten, I am neither an expert nor a semi-expert, just a novice. Since Weingarten covers not only discipline (as has been rescinded) but it also covers whether or not ee's can discuss their wages (my understanding is this has not been rescinded as of yet) (a spectrum of rights if you will) I think it's wise for any non-union employer to at least spend some time contemplating their decision - whether it's 30 seconds or 5 minutes or longer if needed. I'm never one to cry "ADA" or other such nonsense when it's not called for (see Toe Jam post).
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