A 1975 Supreme Court decision (NLRB v. J. Weingarten, Inc.) provides that a union-represented
employee has the right to a steward when facing an investigatory interview. This private sector labor
decision was applied to federal employees by Congress at 5 USC 7114(a)(2)(B). The important thing to
remember about your “Weingarten Rights” is that management does not have to notify you of this right:
The employee is responsible for being aware of the right to request representation. Therefore, make sure
to educate your bargaining unit employees of their rights to request union representation. Here is what
you, and they, need to know:
a. The meeting has to be investigatory in nature for it to be covered by Weingarten. Investigatory
means a meeting/discussion between management (or a management representative like OIG,
LMR, JAG, etc.) and a bargaining unit employee where questions are being asked. Usually these
questions are asked pursuant to an ongoing criminal or administrative investigation; however, less
formal questioning by a manager or supervisor could qualify as well.
b. In addition to (a) above, the employee must reasonably believe that discipline could result from
the investigatory meeting. If the employee being investigated is the subject of the investigation
(i.e. the alleged wrongdoer) then he/she will undoubtedly have a reasonable fear of discipline. If
the employee is not the subject of the investigation, the employee may still have a reasonable fear
of discipline depending on their potential involvement in the subject being investigated. For
example, if an employee observed the misconduct and failed to report the misconduct to a
supervisor, the employee being questioned could fear discipline for failing to report what they
c.If the criteria established in both (a) and (b) above are met, then the employee MUST make a
clear and unambiguous request for union representation. “I want a Union representative before I
answer your questions!!” is the best response. Anything less definitive, such as “Do you think I
need a union representative?” or “I am considering having a union representative present” won’t
d. Assuming the criteria in (a) and (b) above are met and the employee requests a representative as
explained in (c), then the employee should not answer any questions until the union
representative is present. The Agency cannot legally require an employee to answer questions
until their union representative is present.
Weingarten Questions for either type of investigation
1. Is the employee’s participation voluntary or involuntary?
- If it’s voluntary then walk away
- If it’s involuntary then meeting becomes custodial
Note: It’s important to establish whether the investigatory interview is being conducted as part of
a criminal investigation or not. If it is and the employee is being ordered to appear at the
investigation by the Agency then the meeting is ‘custodial’ and the employee in this situation has
the Constitutional right to remain silent and demand a criminal defense attorney under Miranda.
The courts have all held that an investigatory interview in this context is akin to an arrest. Here,
the employee’s Constitutional rights against self-incrimination trump the Agency’s right to
conduct an investigation and an employee therefore cannot be compelled to answer investigatory
2. Is this an investigatory meeting?
3. Is this a civilian or military investigation?
4. Under whose authority is this investigation being conducted?
5. Can you provide the employee with a copy of your appointment letter/orders and inform them of the
nature of your investigation (IAW Army AR 15-6 Section 3-8(a)(1); Air Force AFI 90-301 Para 1.7-1.8)?
6. Is the employee merely a witness, or are they considered a respondent or the target of this
7. Is it criminal or administrative?
a. If the investigation is administrative then the employee has to cooperate with the questioning.
b. If the employee is told that he/she is a respondent or target/witness to a criminal investigation
then they can invoke their 5th Amendment protections and should immediately request that
counsel be provided before going any further.
c. If this is a criminal investigation do not attempt to represent the employee as you are not a
lawyer. Recommend that employee contact a lawyer before they say anything further. The
employee does not have to answer questions until his/her request for counsel is granted. If after
invoking counsel the investigator changes the type of investigation from criminal to
administrative then go to d (below).
d. If the investigation is deemed administrative then employee has to cooperate, but if there’s still
doubt as to the intent of the investigator (they’re saying administrative but they may change it to
criminal later), before proceeding ask the investigator to provide the employee with a written
Kalkines Warning (see sample on next page). This document will absolve the employee of
criminal charges (immunity) resulting from the answers provided in the meeting. In these cases
when there’s doubt as to the investigator’s intent or assurances that no criminal charges will be
brought forth, you should not allow the employee to answer questions until the Kalkines warning
has been signed.
You are being questioned as part of an internal and/or administrative investigation. You will be asked a
number of specific questions concerning your official duties, and you must answer these questions to the
best of your ability. Failure to answer completely and truthfully may result in disciplinary action,
including dismissal. Your answers and any information derived from them may be used against you in
administrative proceedings. However, neither your answers nor any information derived from them may
be used against you in criminal proceedings, except if you knowingly and willfully make false statements.
Investigator Signature: __________________________________________
Employee Signature: __________________________________________