KNOWING YOUR RIGHTS
By: Gerard A. Jones, National President
In this issue, I will cover some of the most important laws that protect your rights and employment during these difficult economic times. Knowing your rights will help you to protect your job and your health benefit.
WEINGARTEN RIGHTS
Employees Right to Union Representation.
The rights of unionized employees to have present a union representative (i.e. shop steward) during investigatory interviews were announced by the U.S. Supreme Court in a 1975 case (NLRB vs. Weingarten, Inc. 420 U.S. 251.88 LRRM 2689). These Rights have become known as the Weingarten Rights.
Employees have Weingarten Rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information which could be used as a basis for discipline, or asks an employee to defend his or her conduct. If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has the right to request union representation. Management is not required to inform the employee of his/her Weingarten Rights; it is the employee’s responsibility to know and request.
When the employee makes the request for a union representative to be present, management has three options:
1) it can stop questioning until the representative arrives;
2) it can call off the interview; or
3) it can tell the employee that it will call off the interview unless the employee voluntarily gives up his/her rights to a union representative (an option the employee should always refuse).
Employers will often assert that the only role of a union representative in an investigatory interview is to observe the discussion. The Supreme Court, however, clearly acknowledges a representative’s right to assist and counsel workers during the interview.
The Supreme Court has also ruled that during an investigatory interview, management must inform the union representative of the subject of the interrogation. The representative must also be allowed to speak privately with the employee before the interview. During the questioning, the representative can interrupt to clarify a question or to object to confusing or intimidating tactics.
While the interview is in progress, the representative cannot tell the employee what to say but he may advise them on how to answer a question. At the end of the interview, the union representative can add information to support the employee’s case.
FAMILY AND MEDICAL LEAVE ACT (FMLA)
The Family and Medical Leave Act of 1993 (FMLA) is a labor law that allows employee’s unpaid leave in the event they need time to take care of personal family matters. The Act is very specific in which circumstances are allowable under FMLA, but it safeguards the employee from losing his or her job while on leave intended to allow families to balance career and family without being penalized.
The Family and Medical Leave Act was originally drafted in an effort to promote equality in the workplace. The rationale behind the Act is that companies cannot penalize employees who need time to take care of a sick family member or their own illness or childbirth, men and women can both take time away from work. This gives women the option of continuing their career even after they’ve started a family, which is a necessity given the high cost of living.
The FMLA allows each employee up to 12 weeks (3 months) of unpaid leave in a one (1) year period. This leave can be used all at once as well as intermittently to accommodate family emergencies as they arise throughout the year.
The Family and Medical Leave Act allows unpaid leave for very specific purposes. Before requesting leave under FMLA, familiarize yourself with the specifics, they are:
- Birth of the employee’s child as well as care of that child following birth;
- Adoption or foster care of a child by employee;
- To care for a sick child, spouse, or parent by the employee;
- An illness that makes it difficult for the employee to perform duties specific to his or her position.
Under the FMLA, employees can still take advantage of their Health Care Benefits offered by their employer. However, under this Act, the employee has the option of paying the employee’s portion if they have a co-share of the insurance contributions as they go or when they return to work.
Arguably, the most important aspect of the FMLA is that it allows employees to return from leave at the same pay, same or equivalent position, benefits and all other terms of the employee’s position.
In order to be eligible for FMLA, you must work for a company employing a minimum of 50 employees. You must work for the company at least 12 months and 1250 hours before requesting leave, and make your request for FMLA unpaid leave at least 20 days in advance.
CONSOLIDATED OMNIBUS BUDGET RECONCILIATED ACT “1986” (COBRA)
Throughout a career, workers will face multiple life events, job changes or even job losses. A law enacted in 1986 helps workers and their families keep their group health coverage during times of voluntary or involuntary job loss, reduction in hours worked or transition between jobs.
The COBRA law gives workers who lose their health benefits the right to choose to continue group health benefits provided by the plan under certain circumstances.
Several events that can cause workers and their families to loose group health coverage may result in the right to COBRA coverage. These include:
- Voluntary or involuntary termination of the covered employee’s employment for reasons other than gross misconduct;
- Reduced hours of work for covered employee;
- Covered employee becoming entitled to Medicare;
- Divorce or legal separation of a covered employee;
- Death of a covered employee;
- Loss of status as a dependent child under plan rules.
Under COBRA, the employee or family member may qualify to keep their group health benefits for a set period of time, depending on the reason for losing the health coverage.
If you need information on COBRA benefits, please contact the NOITU Fund Office, they will be happy to provide you with eligibility requirements.
It is important that we keep our members informed and you will find helpful information in this and future issues of the NOITU Reporter.
