Weingarten Rights
Your Rights…Use Them!

In 1975, the United States Supreme Court issued its ruling in NLRB v. Weingarten, Inc.  The court held that an employee had a right to assistance from a union representative during an “investigatory interview” by the employer, and that the employer’s denial of that right was an unfair labor practice.  The rights recognized in that case and in later court cases are now known as “Weingarten rights.”

   There is still some question about the extent to which full range of Weingarten rights, as developed in the federal courts, applies to teachers and education support employees working for local school districts.  The ruling in Weingarten itself, however, has been followed and enforced by the Nevada Local Government Employee-Management Relations Board (EMRB). 

     The EMRB has most recently held that local government employees, such as teachers and education support employees have the right to request an Association representative to be present at an investigatory meeting that he or she believes may lead to discipline or during a meeting when the employer begins to seek information to enable it to impose discipline.  Any waiver of an employee’s Weingarten rights must be clearly expressed and voluntary.  Once an employee has requested that a representative be present, the employer must not ask the employee any questions or attempt to elicit information regarding the subject matter of the interview until a representative is present.  Furthermore, the employer cannot threaten with discipline or otherwise attempt to force the employee to participate in the absence of Association representation once the employee has invoked his or her Weingarten rights.

The Importance of Representation

Your Association representative is not your “mouthpiece” in the interview; he or she is not there to do your talking for you.  But your representative can still give you critical assistance.  For example:

-You and your representative can meet privately before the interview begins.  If nothing else, such a meeting may alert the representative to the existence of facts, or the names of potential witnesses, that you might otherwise overlook or forget during the interview.

-You and your representative are entitled to be informed of the subject matter of the interview.  What kind of misconduct is being alleged?  When did it allegedly occur?

-Your representative cannot obstruct the interview, but he or she can interrupt to ask for clarification or a question, or to object to any questions that are misleading or abusive.

-Your representative can protect you from yourself.  Any suggestion of misconduct is stressful, and it is important that you maintain your composure during the interview.  Your representative can help keep you and your interviewer focused on the issue at hand.

-When the questioning has ended, your representative can provide the interviewer with (or remind you of) information that is helpful to you and that may avoid disciplinary action or reduce the severity of that action.

Asserting your rights as an employee can help you protect your reputation, your job, and your career.  If you become involved in a situation in which your Weingarten rights are implicated, it is particularly important to speak up and request representation.

 

Educators Employment Liability (EEL) Program

As a member of your local association, NSEA and NEA you are automatically covered by the Educators' Employment Liability Program (EEL).   The coverage is limited to acts arising as a direct result of a member's employment.

• Members are covered for up to $1,000,000 per occurrence for indemnification related to civil suits for damages.   Each occurrence is subject to a $3,000,000 aggregate.   Defense expenses are covered in addition to per occurrence limits.

• Members are covered for up to $35,000 for criminal defense expenses if the member is exonerated of all charges.   Defense expenses for child protective services agency investigations and proceedings are not covered under this benefit.   They may be covered under the Legal Services Program.

• Members are covered up to $1,000 of bail bond premium for employment-related situations.

• Members are covered for up to $500 for damages to personal property when the damages occur during an assault on a member in the course of performing educational employment duties.

In all instances involving coverage, written documentation will be required.   The EEL Program is excess to any other available insurance coverage.   If an employer has coverage, the employer's coverage will (in most situations) be primary.   The employer's insurance carrier/representative or local school district officials will assigndefense counsel.   Horace Mann will monitor the defense and, when necessary, hire independent counsel.

If you believe you are in a situation where you may need any of the above coverage, you should contact your local association or UniServ Director immediately.

NSEA's Legal Services Program
It Can Be Your Best Friend In a Time of Need

Who needs the program?   You do!   NSEA is sometimes accused by its detractors of protecting "bad" teachers and "bad" educational support employees.    School administrators, the argument goes, need broad discretion to fire substandard employees, and NSEA has made the dismissal process cumbersome and unworkable.   NSEA believes that any problems with the dismissal process have primarily involved school administrators who are ignorant of or indifferent to the requirements of that process.   Moreover, although most school districts and most administrators act lawfully and in good faith, some of them are petty, vindictive or just plain silly. Consider the following cases:

Item:   Susan was a veteran teacher whose teaching license lapsed over the Thanksgiving weekend.   (All the names in this article have been changed to protect the privacy of those involved, but otherwise the facts are taken from actual cases.)   Even though Susan reinstated her license within a matter of days, her school district informed her that she had "involuntarily resigned."   Although the district agreed to "rehire" her ­ teaching the same children, in the same classroom, at the same rate of pay ­ Susan was told that she was now a probationary employee, meaning that she had no right to continued employment after the end of the school year.   Susan was ultimately compelled to file a lawsuit to resolve the issue.   After losing in the district court, the school district appealed to the Nevada Supreme Court.   That Court likewise ruled in Susan¹s favor.

Item:   In applying for employment as a teacher, Anthony answered "no" to a question on the employment application about whether he had ever been the subject of an investigation by a school district.   Anthony had previously been employed by the same district as an educational support employee and had been questioned, some years before, about an incident in which he was physically assaulted by a student.   Even though the student had been expelled and Anthony had never been accused of any wrongdoing, his failure to disclose the incident on his application for employment was characterized by the district as "dishonesty."   The district attempted to dismiss Anthony from his teaching position.   After an arbitrator ruled in Anthony¹s favor, the district unsuccessfully attempted to have the arbitrator¹s ruling set aside by the district court.

Item:   Steve, a campus monitor, was falsely accused by a female student of sexual assault.   During the criminal trial, Steve rejected a plea bargain offered by the district attorney that would have avoided a possible life sentence.   He was thereafter acquitted by the jury.   Nevertheless, the school district elected to move forward with the pending dismissal proceeding, and presented its case to an arbitrator.   Concluding that the alleged victim had fabricated her story, the arbitrator ordered Steve reinstated with back pay and benefits.

Item:   Sandra's new principal decided that Sandra¹s teaching performance was unsatisfactory.   Although a "concentrated assistance team" was formed to help her and although members of the team conducted several observations in Sandra¹s classroom, she was never given any feedback about those observations.   A written plan of assistance was never prepared for her, even though the district¹s own policies required the preparation of such a plan.   When the members of the team met in March and decided to recommend Sandra's nonrenewal, they discovered that Sandra had never been given a written admonition as required by law.   Sandra¹s principal thereafter gave her an 11-page admonition, setting forth dozens of directives, but gave her only three weeks (including the 2-week spring break) to comply with those directives. Nonrenewal proceedings followed.   Again, an arbitrator ruled in Sandra's favor.   And again, the district unsuccessfully sought to overturn the arbitrator's ruling in the district court.

All of these employees received the benefits of NSEA's legal services program and all were represented by NSEA's attorneys.   All of them prevailed, despite protracted litigation by the school districts involved. That litigation, of course, cost tens of thousands of dollars in attorneys' fees.   But none of these employees paid a penny in fees; all the costs were paid by NSEA's legal services program.

Perhaps you're thinking that nothing like this could ever happen to you, and we hope you¹re right.   You may never have occasion to use the legal services program directly.   But even if you do not, you still benefit from the program because its very existence, and the knowledge that NSEA will fight to defend its members against arbitrary or illegal employment action, help protect all educational employees from administrators and school districts who might otherwise abuse their authority.

Where does the money come from to support the program?   NSEA members support the program through their dues payments.   It is important to note, however, that the National Education Association (NEA) reimburses NSEA for one-half of all amounts paid out under the program.   In addition, an employee who is represented under the program and recovers a judgment, settlement or insurance payment in excess of his or her actual losses is required, from the excess payment, to reimburse the program for the expenses incurred on his or her behalf. Reimbursement is otherwise not required.

Who is eligible for legal assistance under the program?   Generally, only employees who are members of NSEA and its local affiliate are eligible for assistance.   An employee must be a member at the time of the occurrence, giving rise to the dispute and must remain a member while assistance is being provided.   Any employee who is not a member will receive assistance only if NSEA and NEA decide that the subject of the dispute has significant implications for all educational employees.   NSEA does not discriminate among applicants for assistance on the basis of race, color, national origin, creed, gender, sexual orientation, age, disability, marital status or economic status.

What kinds of disputes are covered by the program?   In a criminal matter arising out of an employee¹s performance of his or her employment duties, NSEA will pay up to $1,000 per occurrence for attorneys¹ fees and related costs (e.g., fees charged by investigators or other experts).   In non-criminal matters, legal assistance is available for dismissal cases or any other proceeding connected with employment as a teacher or educational support employee.   Generally, assistance is more likely to be granted in a dismissal case, but it is also available under some circumstances for suspension proceedings, grievances and other employment- related matters. In determining whether to grant "funding" for assistance from the program, NSEA considers such factors as the cooperation of the employee, the probability of success, and whether the employee has notified the local affiliate of the facts during the early stages of the dispute.

How does an employee obtain legal assistance?   If you are notified of potential disciplinary action against you, or if you become involved in any other situation in which you believe legal assistance may be required, it is important that you notify your grievance or building representative, or your UniServ Director, as soon as possible.   Once you sign an "authorization to commence legal representation," this person will submit an application for funding to NSEA on your behalf.   If funding is granted, NSEA's attorneys will work with you to take such action as may be necessary to protect your rights.   If funding is denied, you have the right to appeal the denial, within 90 days, to NSEA's board of directors and thereafter to the NEA.

Can funding be terminated for any reason?   Yes.   NSEA may terminate funding, and thereby terminate its legal assistance to you, if: (1) you fail to cooperate with NSEA's attorneys or any representative of NSEA or its local affiliate (e.g., by failing to appear for scheduled meetings with the attorney assigned to your case); (2) you take some action that interferes with the ability of NSEA¹s attorneys to represent you; or (3) you reject a settlement or other resolution of the dispute that NSEA deems to be reasonable.   As with a denial of funding, an employee whose legal assistance is terminated has a right of appeal as outlined above.

Conclusion.   The availability of free legal assistance is one of the most important benefits of your NSEA membership.   You might think of the dues money you pay for the support of the legal assistance program in the same way you think of your auto insurance premiums.   You hope you'll never have to make a "claim," but when you need it, you'll be glad you have your "insurance policy."