While some people might read the title of this post and ask, “Really?!” The truth is “Really.” Employees often get very nervous when asked to a private meeting with human resources or their supervisor. And the employee wants someone there for comfort…as evidenced by this reader note.
Can you have someone sit in on a meeting between you and your supervisor? The situation is that an employee asked if her mother could attend the meeting, fearing that she would be in a hostile situation. The employee is under 21 years of age.
When the employee asked their supervisor if her mother could, she was told it was “illegal” since she is over 18. Is that true? I have never heard of such I thing. Why can’t an employee no matter what age have a witness present should there be a problem – or even if there is no problem?
This is not an unusual situation at all. I’ve been asked the question several times. To offer some insights, I asked employment attorney Donna Ballman, author of the award-winning book “Stand Up for Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards.” Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, has been named one of the American Bar Association’s 100 best legal blogs for the past five years.
I’m delighted to welcome Donna to HR Bartender and thankful that she’s willing to take the time to do this. Please remember she does have a full-time job that I’m sure keeps her busy. Donna’s comments should not be construed as legal advice or as pertaining to any specific factual situations. If you have detailed questions, they should be addressed directly with your friendly neighborhood labor attorney.
Donna, can an employee (regardless of age) have someone present when they’re meeting with their supervisor and/or HR? Does this change for union/non-union environments? Are there state laws that might come into play?
[Ballman] What you’re probably thinking of is something called Weingarten rights, which is from a case unsurprisingly called NLRB v. J. Weingarten, Inc., 420 US 251 (1975). In that case, the Supreme Court said it was an unfair labor practice to deny union representation in a pre-disciplinary meeting. The National Labor Relations Board (NLRB) has flip-flopped on whether or not this applies to non-union employees. The latest seems to be that it does not.
On the other hand, the employer’s claim that it is illegal to have someone present as a witness is ludicrous. There is no such law.
I don’t know of any state laws which require more than Weingarten does. While the NLRB may change back to allowing non-union employees to have a witness, right now employers only are required to allow witnesses in a union shop.
If an employee can legally have someone sit in, what are the advantages and disadvantages of doing so? And who should be the “invited party”?
[Ballman] If you can have a witness, then it may make sense to do so. Sometimes employers claim employees did or said certain things in meetings that resulted in termination. If your witness can confirm that you did nothing insubordinate, didn’t go on the screaming and cursing rampage the employer claims, then that could help. Also, since you may be in shock if you are being disciplined or fired, it is good to have another set of eyes and ears.
As to whom you should invite, I’d say invite a coworker you trust not to blab your business everywhere, but who would be reliable. You also want to make sure that your witness is not prone to outbursts or violence that could make your situation worse.
Truthfully, if the employee is an adult I think having mom come is a bit much.
The reader tells us the employee’s age. Does age factor into having “invited guests” to meetings?
[Ballman] If you have a minor employee or someone with a disability that may require assistance, then having a parent present makes sense. I don’t know of any legal requirement for this, but it could actually benefit both employer and employee to invite a parent to sit in with a minor or disabled employee. First of all, being alone behind closed doors with a minor could invite all kinds of accusations of employer misconduct that could be avoided with a parent or coworker friend as a witness. Second, with someone who does not have a developed sense of self-control or knowledge of how a workplace actually functions, having some parental guidance may defuse the situation.
One of the things that struck me about this note is the assumption that a meeting with HR and your supervisor translates into something bad is going to happen (and therefore, you need to bring someone with you.) Even if there’s an investigation going on, it doesn’t have to be this way. What can organizations do to make these meetings less tense?
[Ballman] It’s the same thing I tell my kids. If the text message starts with, “I’m in the hospital,” then I’m going to freak out. Start out, instead, with, “I’m okay.” Then give the message. With HR, employees are probably going to assume the worst. If you have a meeting to schedule, tell what it is about. Start with, “It’s nothing bad,” or, “I have some good news to discuss,” or, “We need to meet about a company policy change.”
If it’s a disciplinary meeting, sometimes allowing the employee to have a silent witness may help ease the tension, so think about allowing it even if you aren’t legally required to do so. Think about how you would want to be treated under the same circumstances. Why not have a humane policy that will boost morale company-wide?
Last question, I was surprised by the supervisor’s response that bringing a witness was “illegal.” You’ve already told us it’s not. But even if it was, there’s probably a better way to handle the question. What should supervisors do when employees ask for witnesses in meetings?
[Ballman] Have a set policy and follow it. Why not put it in the handbook, since the issue comes up a lot. If you decide there are no witnesses, don’t make exceptions. If you do allow witnesses, set guidelines such as no outbursts, no violence, no threats. If the witness causes problems, ask them to leave.
If the employee is legally entitled to a witness, you have to stop the meeting and allow them time to get their witness. You can continue the investigation without interviewing the employee. If there is a meeting that may lead to discipline, make sure you allow the witness to be present or you can face consequences from the NLRB.
Meetings with management or human resources don’t have to be scary. Companies should communicate intentions clearly so any conversation with an employee is open, honest and productive.
Image taken by Sharlyn Lauby while wandering the streets of Key West6