Weingarten Rights

Employees have a right to union representation when they are questioned by an employer in a situation that might result in discipline.

Weingarten Rights apply to the right of all unionized employees (tenured or not) to request union representation for any investigatory interview conducted by their employer, in which the employee has the reasonable belief that the discussion could lead to disciplinary action. If representation is requested, and the employee is a potential target of disciplinary action at the time of questioning, a reasonable period of time shall be afforded to the employee to obtain such representation.

The eight key points of Weingarten Rights are:

1. Union Members Have The Right To A Union Representative: If none is available, members can demand to postpone.

2. The Right To Know The Subject Matter Of The Interview: Members and stewards have the right to know what specific subjects and issues will be addressed in the interview; management should not be allowed to go on a “fishing expedition.”

3. The Right To Have A Private Conversation: The steward must be allowed to take members aside for a private pre-interview conversation before questioning begins and at any time during the meeting with management.

4. The Right To Speak During The Interview: The steward is allowed to speak during the interview. During this meeting, the steward is considered to be the same status as management.

5. The Right To Ask For Clarification: The steward can ask that the supervisor clarify a question so that the worker can understand what is being said.

6. The Right To Counsel: Before questions have been asked, the steward can give advice on how to answer the questions.

7. The Right To Inform: When the questioning ends, the steward can provide additional information.

8. The Limits of Weingarten: If Weingarten Rights are honored, stewards have no right to tell members to lie or to refuse to answer questions.

More information can be found here at the National Labor Relations Board's website.

Cadet Rights

A tenured teacher need not answer questions in any pre-hearing investigation.

If a tenured teacher is asked questions in an investigation that the teacher believes could lead to disciplinary action, the teacher has the right to assert Cadet. By doing so, the teacher cannot be held insubordinate when refusing to answer such questions.

The Education Law §3020-a hearing process is the sole method by which tenured teachers can be disciplined in NYS, and the statute provides that no teacher can be compelled to testify at the hearing. Consequently, it has been established that a teacher can refuse to answer questions, without being found insubordinate, during an investigation that the teacher believes could lead to such disciplinary action. Known as Cadet Rights, this principle was established through a disciplinary case involving a tenured teacher who was found guilty of misconduct through a 3020-a hearing. However, the decision of the hearing officer to dismiss a charge of insubordination was appealed by the school district. The insubordination charge was related to the teacher’s refusal to answer questions during an investigation prior to the hearing in the appeal decision, the Commissioner of Education agreed that a teacher need not answer questions in any pre-hearing investigation which precedes a 3020-a hearing. The decision was in turn affirmed by the courts.

Other Laws That Protect You!

TENURE: Employment status of professional educators achieved after completion of the probationary period. This status carries significant protection from unfair employer actions. Tenured individuals cannot be disciplined or removed from employment except for "just cause." Click the links here for more information from NYSUT and NYSED.

PROBATION: Employment status of newly hired professional educators, lasting up to four years pursuant to Education Law §3014(1). The probationary period may be reduced by a year if the educator previously achieved tenure in another school district, or is entitled to Jarema Credit for regular substitute employment of at least a semester in the same district.

JAREMA CREDIT: Education Law §2509(1)(a) allows a teacher who has rendered satisfactory service as a regular substitute for a period of two years immediately prior to his or her probationary period to have a shortened probationary period of one year.

TENURE BY ESTOPPEL: As probationary teacher is entitled to tenure even without action by the Board of Education when the Board accepts the continued services of the teacher, but fails to take the action required by law to grant or deny tenure. This was determined in Matter of Brown v. Board of Educ. of Mahopac CSD.

FMLA: Family Medical Leave act of 1993 entitles eligible employees to a total of 12 work weeks of leave time during any 12 month period for the family and medical reasons listed in 29 USC §2612(a)(1). Upon returning to work, the employee is to be restored to his or her previous position.

TAYLOR LAW: Public Employees' Fair Employment Act (summary) as laid out in

Article 14 of the NYS Civil Service Law (full text).

1. 1. Grant public employees the right to organize and to be represented by employee organizations of their own choice;

   2. Requires public employers to negotiate and enter into agreements with publics employee organizations regarding their employees’ terms and conditions of employment;

   3. Establishes impasse procedures for the resolution of collective bargaining disputes;

   4. Defines improper practices by public employers and public employee organizations;

   5. Prohibits strikes by public employees; and

   6. Establishes a state agency to administer the Law—the Public Employment Relations Board (PERB).