Know your rights!
Weingarten Rights
The boss is under no obligation to tell a member about the right to have a TMSA representative present. The member must know their right and ask to use it.
Once they’ve asked for their TMSA representative, management should not continue asking questions before a representative gets there or pressure them by telling them that “you’re only making things worse for yourself” by asking for a representative.
Members can state the following: “If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I request that my union representative, officer, or steward be present at the meeting. Without representation, I choose not to answer any questions.”
If they don’t request having a TMSA representative present, they waive the right to challenge discipline taken against them for things they said in that meeting on the grounds that they didn’t have a TMSA representative with them.
Just as it’s important to know what your Weingarten rights are, it’s also important to know the limits.
Members are not entitled to have a TMSA representative present every time a supervisor wants to talk to them– like about how to use a certain tool or what their assignments are for the day. But if the discussion begins to change into questioning that could lead to discipline, they have the right to ask for a TMSA representative before the conversation goes any further.
If they’re called in to the supervisor’s office for an investigation, they can’t refuse to go without a TMSA representative. All they can do is to refuse to answer questions until the TMSA representative gets there and you’ve had a chance to talk things over.
Garrity Rights
Garrity Rights protect public employees from being compelled to incriminate themselves during investigatory interviews conducted by their employers. This protection stems from the Fifth Amendment to the United States Constitution, which declares that the government cannot compel a person to be a witness against themself.
For a public employee, the employer is the government itself. When questioned by their employer, they are being questioned by the government. Therefore, the Fifth Amendment applies to that interrogation if it is related to potentially criminal conduct.
Garrity Rights originate from a 1967 United States Supreme Court decision, Garrity v. New Jersey.
Often, public employers will simply want to conduct an administrative investigation in order to ascertain whether misconduct has occurred, and to determine if disciplinary action is warranted. Accordingly, many public employers begin investigatory interviews by asking employees to sign “Garrity Statements,” “Garrity Advisements,” or “Garrity Warnings.” Once signed, a properly-worded statement enables management to question the employee and require that they respond.
How this applies to:
Compelled admission of criminal wrongdoing:
This means that if an answer to a question is compelled by the Employer and it incriminates the member as it relates to a crime, the government may not use that information against the member in a criminal proceeding. Compelled means that the Employer reserves the right to discipline you if you don’t answer.
Voluntary admission of criminal wrongdoing:
If the Employer is asking, but not compelling, then any answers may be used against the member in any court. However, that also means that if the member does not volunteer their side of the story or information that might mitigate what happened, then the Employer can and will discipline without such information.
In Practice:
1. If you think there is any hint of a charge that might be criminal in nature contact a TMSA Director who will consult with the TMSA attorneys.
3. If the Employer offers a Garrity statement or handout at the beginning of an interview, Ask the Employer whether the interview is “compelled” or “voluntary” and if this is a standard warning or given for a specific reason in this case, then also do #1.
Tennessen Rights
In Minnesota, the government must give individuals notice when collecting private or confidential information from them. This is referred to as a “Tennessen warning notice.” Government may also call it a “privacy notice,” a “notice of collection of private/confidential data,” or something similar. The purpose of the notice is to enable people to make informed decisions about whether to give information about themselves to the government. (See Minnesota Statutes, section 13.04, subdivision 2.)
Generally, the person has the right not to offer what might be considered personal data, but then Employer has a right to make their decision without that input from the member.
What must the notice include?
- The reason government is collecting the data,
- How government plans to use the data,
- Whether the person is legally required to provide the data or may refuse to do so,
- Consequences if the person provides the data,
- Consequences if the person does not provide the data, and
- The identities of people and entities that have access to the data by law. (For example, all notices should include that data may be shared upon court order or provided to the state or legislative auditor.
Loudermill Rights
The Supreme Court held that employees with a property interest in their jobs
The U.S. Supreme Court held that employees with a property interest in their jobs are entitled to certain due process rights prior to termination. These rights include oral or written notice of the charges against them, an explanation of the employer’s evidence, and an opportunity to be heard in response to the proposed action.
Loudermill rights are applicable in instances when the employee may have a loss of pay, such as suspension, termination, or demotion.
Practically, the employer must offer a notice that the Company is going to discipline an employee with a longer suspension, demotion, or discharge and then allow for the employee to offer a chance to correct any mistaken facts or offer information that might be important and then consider that before making a final decision (issuing the discipline letter). There is no requirement on how long they must consider that. This usually occurs after the investigative interview and before they issue the discipline letter and is separate (and prior to) any grievance process.