You Have the Right to Counsel At Work

came up next episode 321 Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide, where I tell you what your employer does not want you to know about and a lot more. Today's episode we're gonna talk about the right to counsel at work. If you are like me, you have seen countless police dramas on television and at the movies. Whenever the police take the suspect into custody, they read the well known Miranda warnings. Most Americans can probably recite the standard Miranda warnings after decades of immediate reinforcement. Quote, you have the right to remain silent. Anything you say can and will be used against you and quote, we all know what is supposed to come next in that warning, right. While the right to have the assistance of counsel for one's defense in a criminal case is a cornerstone of our concept of due process. Many Americans are surprised that the right to counsel does not apply in all situations where fundamental human rights are at stake. Case in point we have almost no right to counsel when our rights at work are in jeopardy. Unless we are members of our of a labor union. An employer can investigate our conduct. force us to answer questions that might put our employment at risk. isolate us from coworkers for questioning, accuses of misconduct or substandard performance without basis and impose discipline or terminate or implement entirely without once allowing us to consult with a lawyer. Further, while defense attorneys are provided free of charge to indigent criminal defendants, employees often have no way to engage employment counsel at an affordable price. All right to defend ourselves from faceless criminal prosecution is considered important enough to justify publicly subsidized representation. But our right to protection from overreaching and oppressive employment practices that can terminate our livelihood is not deemed of similar significance. I disagree. For most American workers, the right to counsel at work is quote, You have no right to speak with an attorney or to have one president when we investigate or terminate you, even if you can afford one. If you cannot afford to afford an attorney, tough luck. In that case, you cannot even speak with an attorney outside of work. And by the way, you can't have a lawyer or even a coworker present at the disciplinary meeting either and teampage. Your employer has already lawyered up. American corporations collectively spend billions each year on top notch employment attorneys to help them manage their employees. American workers in contrast, are able to spend very little on skilled employment lawyers to advise them on how to manage their employers. There's a gross imbalance in both the information and power between employers and employees. This disparity in power and information creates an imbalance in most workplace disputes. If employees had a right to legal counsel and implement matters, the initial repeat if employees had a right to legal counsel and implement matters, the inequitable disparity in knowledge, resources and power will be greatly diminished. While the second class status for remote repeat why the second class status for employment rights. According to the United Nations General Assembly, the right to work is a basic human rights. The UN has adopted the Universal Declaration of Human Rights, which states and relevant part quote, everyone has the right to work, to free choice of implement to just unfavorable conditions of work, and to protection against unemployment and quote. In the United States, these work related rights are given short shrift. While all would agree it is a necessity to work and to earn a living. We've provided very few protections to our right to work and to continue working under reasonable human humane conditions. Further, the right to work will could mean life or death for many Americans. A public health and epidemiology researcher named Dr. Harvey Brenner has published numerous studies focused on the relationship between economic well being and community health. Dr. Brenner has held positions in public health and epidemiology at major institutions such as Johns Hopkins and Yale University. Dr. Brenner is quoted as stating that The figure of 40,000 us deaths for every 1% rise in unemployment is still quote, a good rule of thumb and quote. This statement is based on his work dating back decades. Well, Dr. Weil, Dr. Brenners work is far from universally accepted, there was a clear correlation between the unemployment rates and mortality turn page. My contention here is simply that the UN and Dr. Brenner are correct. The right to work and to be free from unnecessary unemployment is indeed a fundamental human right. Accordingly, these employment rights should be protected. One way to ensure the protections would be an exponential expansion of employees rights to counsel and implement matters outside of the Union context. Weingarten rights should be expanded outside of the Union context, one sector of the American work force is already has repeat. one sector of the American workforce already has some limited rights to representation in employment disputes. Unionized workers have a right to have a union representation, not necessarily legal counsel, but some union affiliated representative, usually another coworker present at any meeting that may reasonably be expected to involve disciplinary action. This limited right to Union union representation was established by the US Supreme Court in the case of NLRB vs. J. Warden Weingarten. The Supreme Court held that the right to representation in an investigatory meetings with the employer was based on Section seven of the NLRA which states quote, employees shall have the right to engage in concerted activities for the purpose of mutual aid or protection and quote, failure to provide Weingarten rights to eligible employees constitutes an unfair labor practice under Section eight A of the NLRA. While Weingarten rights are currently only available to for unionized employees, that has not always been the case, in 2000, the NLRB extended the right to representation to include the right of non union workers to have our co workers repeat in 2000. Repeat in 2000, the NLRB sorry, repeat. In 2000. The NLRB extended the right to representation to include the right of non union workers to have co workers present during an investigative interview. This was determined because even non union employees have section seven rights, the right to engage in activities of mutual protection. Four years later, the NLRB overturned this rule and decided that the employer is right to conduct repeat. Four years later, the NLRB overturned this role, and decided that the employees repeat. Four years later, the NLRB overturned this rule and decided that the employers right to conduct efficient investigations outweighed the employee's right to representation. This current rule reflects a lack of consideration for the fundamental human rights of employed persons. Only an impoverished view of human rights of workers can render the conclusion that the relative loss of quote, efficiency, and quote, in conducting workplace investigations can outweigh a working person's right turn page. Continue to representation when their livelihood, career and economic fortune are at stake. While the NLRB has recently signaled openness to reconsidering the application of Weingarten rights outside of the Union context, the right to have actual legal counsel present when your job is at risk remains distant. Another related area of employee representation includes the right of an employee to have information about the employers investigation before the investigatory meeting. In other words, as the law stands employers can summon a non union worker into an investigatory meeting, where the purpose is to gather facts that can lead to the employee's termination for cause without telling the employee or her union representative, if applicable. what the issue is whether the employee has been accused of misconduct or even what information will be sought. Since employment rights or human rights workers should not be placed in jeopardy of losing their jobs without due process. Employees should should be entitled to have reasonable notice before any investigatory or disciplinary meeting. Employees should have a right to know what the meetings about and what information will be sought ahead of time. Further, employees should have a right to representation by either legal counsel or at a minimum. If time does not permit summoning counsel, a fellow employee to represent the employee's interest. It is important to remember that while the law does not require employers to provide these fundamental due process rights to employees, there's also no law that prevents employers from demanding them repeat. It is important to remember that while the law does not require employers to provide these fundamental due process rights to non unionized employees, there is also no law that prevents non EU not in GS repeat. It is important to remember that repeat. It is important to remember that while the law does not require employers to provide these fundamental due process rights to non unionized employees, there is also no law that prevents employees non unionized employees that is from demanding them whether in pre employment negotiations or during an actual investigation, non employee non unionized repeat whether in pre employment negotiations or during actual investigation. Repeat whether in pre employment negotiations or during an actual investigation, employees can and should advocate for themselves to receive fair treatment, even if the law is not yet in place to support those rights. While most working people would agree that a right to counsel as well as other basic due process rights should be provided in every employment conflict. Few are actually advocating for that right. Let's start demanding what is right. What I do if I'm called to a disciplinary meeting at work, turn page. Continue. Since you do not have a right to counsel at work. How should you handle a disciplinary or a termination meeting with management? First, remember that because there is no current right to counsel at work, you cannot demand a lawyer be present before you meet with your employer. You can request your attorney be present and the employer can grant the request or not at its discretion. I recommend requesting your attorney be present in writing by email or other means. So you can substantiate the employers refusal to allow your employer your attorney to be present later. While your employer can require you to attend meetings with that with whomever they choose without your lawyer, it's not a good look to deny someone the right to their legal counsel. While you repeat. While you can request to have your attorney present, the employer is likely to deny that request, you will have to attend the meeting anyway. Once Once the requests to bring employment counsel is rejected. You can ask to have a coworker attend on your behalf. Again, except for the union workers, you have no right to have a coworker present at a disciplinary meeting. However, this request may be more palatable to the employer and will occasionally be granted. Your co worker can act as a witness to what was said at the meeting and can provide moral support if not advocacy. Finally, document everything said at the meeting in writing. Take detailed and explicit notes. While employers can deny you an attorney at work. They cannot stop you from counsel. Repeat. Take detailed and explicit notes. While employers can deny you an attorney at work meetings that cannot stop you from consulting an attorney and on your own time. When you do speak to an attorney having detailed account of everything said at the meeting will be a great help to help to your lawyer when you are eventually able to consult with one. What types of workplace situations require legal advice. So when you do need to have a lawyer at work, repeat. So when do you need to request a lawyer at work? The number of potential workplace issues that can arise are often Of course, numerous. What type of situations would trigger a search for counsel? An affirmative response to one of the following questions should lead you to consider talking to an attorney as soon as possible. Number one is your attorney. Repeat. Number one is your employer accusing you of misconduct turn Pitch continue to is your employer accusing you of poor performance? Three, is your company experiencing a reorganization? For Have you just repeat? Four? Have you noticed that you are being treated differently at work than you were previously? Five? Do you have a new supervisor or manager who's changing your work environment? The list is numerous. And I'll just add one more. If you've been put under a performance improvement plan, you definitely want to talk to an attorney turn page while the repeat while this list is not exhaustive of the circumstances where you need repeat, while this list is not exhaustive. While this list is not exhaustive, sorry. While this list is not exhaustive of the circumstances where you might need to consult an employment attorney, if you observe one or more of these issues at work, you should seek advice right away. When employees obtain counsel early in their employment before any serious adverse action is taken by the employer, a skilled employment attorney can not only help to resolve the workplace conflicts before they become too severe, but they can also help to avoid certain conflicts and issues. Increasingly, I'm not repeating increasingly we are noting that employees are retaining our services to help advise them on how to preserve their job and avoid difficult employment conflicts, not just to litigate against their employer after the working relationship has broken down. Term pitch stand up for the rights you do not yet possess. While the right to have legal counsel provided to employees in the workplace conflicts has not yet been recognized at law. It is important that the right to repeat while the right to have legal counsel provided to employees and work. Repeat. While the right to have legal counsel provided to employees and workplace conflicts has not yet been recognized that law, it is important that that right take root in our collective and individual consciousness first. In order to change that status quo, we need to think differently about the employment relationship. We need to challenge the status quo and at every turn to affect change. I speak to many working people and small businesses owner repeat. I speak to many working people and small business owners every day as an employment attorney. Although they each have their own concerns and challenges. One thing they all have in common is a belief that the law should ensure fairness and equity in the workplace for all. Nelson Mandela famously said, quote, to not repeat. Nelson Mandela famously said, quote, to deny people their human rights is to challenge their very humanity and quote, as a human has determined the right to work and to be free of oppression at work is a fundamental human right. Without timely and available legal counsel. We cannot hope to realize the dream of fairness and equality in the American workplace. Let us defend our humanity by asserting a right to legal representation at work wherever possible. If you have any questions regarding this podcast episode, or you need an attorney in the workplace, please contact us on the web at Carey & Associates PC. Thank you and have a great week.