From Masschusetts
Question: Do you have any information regarding what union stewards can say and do while in an investigation meeting? My experience of late is that they will try to interrupt the meeting by asking to caucas. They will try to keep the same steward if the investigation continues for a period of days.
Answer: There’s no easy answer to the question you ask. The right to representation stems from the federal Weingarten rule, which has been adopted by virtually all states with collective bargaining laws. Under the general dictates of the rule, a union official has the right to “represent” employees in interviews where the employee reasonably believes that disciplinary action could result.
What’s not well-defined is what the word “represent” means. There are a few clues in the Weingarten case itself. In Weingarten, the Supreme Court fairly clearly indicated that “represent” meant, at a minimum, (1) Being able to ascertain the charges before the interview began, (2) Questioning the employee at the conclusion of the interview, and (3) Offering mitigating circumstances and investigatory leads at the conclusion of the interview. The Court didn’t discuss the matter at any length, however.
In the years since Weingarten, a variety of states have addressed the extent of the rule, if only on a case-by-case basis that has yielded few broadly-written opinions. Most state cases deal with when the right to representation exists in the first case – a recurring theme as of late is whether Weingarten is implicated when a witness employee (rather than the suspect employee) is being interviewed – and do not discuss what it means to “represent” an individual. Most states would say that to “represent” includes the right to privately consult with the employee during the interview (Oregon holds to the contrary), but does not include the right to object to inappropriate questions (Ohio holds to the contrary). All states seem to adopt a general rule that the representation cannot inappropriately “disrupt” the interview, though the decisions are lacking in specificity as to what “disrupt” means.
From this fog we recommend a rule of reasonableness. We suggest employers not try to compel shop stewards to remain silent during an interview. Not only would such an order likely violate Weingarten, but shop stewards can often be helpful to an employer during the interview. If, however, the shop steward’s behavior is so disruptive that the interview cannot proceed effectively, the employer can either insist that the shop steward leave or can terminate the interview and proceed to a disciplinary decision without the employee’s interview.
From Wisconsin
Question: Do you feel that the FLSA requirement that police dog handlers be compensated for home care of the dog would apply to a part-time mounted patrol? For example, an officer owns or purchases a horse for recreational purposes, but a department sends the officer to on-duty training in police mounted use (and supplies some equipment). However, the officer has a full-time position in the department unrelated to the use of the horse, and the horse is only used a few times a year in a police capacity. The officer views the horse as a personal possession for personal use, but is willing/interested in using the horse on a part-time basis in a (part-time) mounted unit. This situation certainly seems distinguishable from the full-time (everyday) use of a police dog. Would an agreement with the Union to compensate the horse owner a certain amount (an hour or two of work time, for example, to compensate for the home care that could be related to each police use) each time the horse is used for police purposes cover FLSA requirements?
Answer: We see no basis to distinguish (at least for FLSA purposes) between home dog care and home horse care. The agreements used with canine officers – agreements that are good faith estimates of time spent and a specification of the amount of compensation for the time – could easily be used for home horse care purposes. Such agreements are broadly applicable under the FLSA when an employee is performing work at home, with the underlying theory being that since the employer has less control over the performance of the work, an arms-length agreement over the time involved can be binding.
To submit questions on public safety labor and employment issues, visit our web site at www.LRIS.com. Please be aware that the answers given here are for information purposes only and should not be construed as legal advice.