Many union workers are aware of the rights that exist in labor law to protect them in the workplace. The proper use and applicability of these rights can be confusing and are often misunderstood. Weingarten rights guarantee you the opportunity to have a union representative present while being questioned in a disciplinary matter. To have these rights enforced, the employee must ask for them. What if a counseling session turns into an investigation into misconduct? Are you aware enough of your rights to ask to have the meeting stopped and wait for a union representative? You may not be aware of your constitutional due process rights, but the U.S. Supreme Court has said a public employee has a “property right” to their public sector job and they must be allowed a hearing before the final decision to terminate their employment is made. You also have what are known as “Garrity rights.”
In 1966, the U.S. Supreme Court ruled in the Garrity vs. New Jersey case that if a public employee is ordered to answer questions by their employer under the threat of discipline about a potential criminal matter, they are not voluntarily waiving their rights against self-incrimination, but are making statements under duress. The police, to further their investigation or gather evidence to be used in a criminal investigation, cannot use statements made under these conditions.
Garrity rights are similar to Miranda rights for public employees. However, the burden is on the employee to assert their Garrity rights. These rights can and should be asserted whenever an employee believes they are being investigated for events that might involve possible criminal conduct. If the employer demands that you answer questions concerning possible criminal misconduct, then Garrity rights apply because you are being “forced” to answer possibly incriminating questions.
Once an employee has asserted their Garrity rights, management must:
- Give a direct order to answer the question;
- Make the question specific and directly and narrowly related to the employee’s duty or fitness for duty;
- Advise the employee that the answers will not and cannot be used against him/her in a criminal proceeding nor the fruits of those proceedings; and
- Allow union representation if the employee also asserts their Weingarten rights.
To ensure that your Garrity rights are protected, you should ask the following questions:
1. If I refuse to talk, can I be disciplined for the refusal?
2. Can that discipline include termination from employment?
3. Are my answers for internal and administrative purposes only and are not to be used for criminal prosecution?
In May 2002, OSEA established a policy regarding the methods and procedures that shall be used in dealing with instances where members are being investigated for conduct that could be construed as a criminal matter. A Garrity rights form has been created and should be used in cases that present possible criminal violations. Your field representative will have these forms and know their use.
Should you be in a situation where Garrity rights are needed, understand that the district will most likely have never heard of Garrity rights and their meaning. Don’t be surprised or angry with this, it is just not that common. A simple explanation that you understand the district has a right to investigate the matter, but that you also have a Fifth Amendment right against self-incrimination, should clear the way for meaningful dialogue. These two rights can co-exist with the proper use of Garrity Rights. In many cases, you may not even be aware of whatever crime or problem they are talking about and, even if you are aware of it, you also know you did not do it. Don’t fall into the trap of talking too much just to try to make the district interviewer happy. Be cautious, exercise your rights and seek legal advice. Your employer may tell you things like: If you confess or admit to the crime or tell them who did the crime, they won’t prosecute you. However, your employer does not have the final authority to determine who will be prosecuted; it is up to the district attorney to make that determination. Please be cautious in your statements during interviews and help keep your fellow workers advised of their rights.
If you have any questions or for more information, contact your OSEA field representative.