Named for a 1975 Supreme Court decision, NLRB v. J. Weingarten, Inc., Weingarten Rights provide that a union-represented employee has the right to a steward when facing an investigatory interview. The important thing to remember about Weingarten Rights is that management (or a Postal Inspector or OIG agent) is not required to advise you of this right. It is the responsibility of the employee to be aware of this right and to request representation.

Under the Supreme Court's Weingarten decision, the following rules apply to investigatory interviews: The employee can request union representation before or at any time during the interview. When an employee asks for representation, the employer must choose from among three options : (1) Grant the request and delay questioning until the union representative arrives; (2) Deny the request and end the interview immediately; or (3) Give the employee a choice of (a) having the interview without representation or (b) ending the interview. If the employer denies the request for union representation and continues the meeting, the employee can refuse to answer questions.

 Employees have the right to remain silent. In Miranda v. Arizona, 384 U.S. 436 (1966) the Supreme Court's historic decision, the Court ruled that before a law enforcement officer may question an individual regarding the possible commission of a crime, the officer must read the individual his/her Miranda Rights and must also make sure that the individual understands these rights . Accordingly, an individual must be informed that (1) you have the right to remain silent; (2) anything you say can be used against you in court; (3) you have the right to talk to a lawyer for advice before they ask you any questions and to have your lawyer with you during questioning; if you cannot afford a lawyer, one will be appointed for you before any questioning if you wish; (4) if you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time and you also have the right to stop answering at any time until you talk to a lawyer; and (5) do you understand the rights that have been read to you?

Please note, however, that a law enforcement officer is allowed to ask routine questions necessary to help determine a person's true identity before reading the individual his/her Miranda Rights.

 The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. This means that a person may not be required or coerced to disclose any information that he or she reasonably believes may be used (or lead to other evidence that may be used) in a criminal prosecution against him or her. If a person is coerced into disclosing information, that information is not admissible in court against him or her.

In addition to the basic Fifth Amendment rights, Postal Service employees have additional rights under the Fifth Amendment as public sector employees. These workplace rights arise because in the public sector the government acts as both law enforcement agency and employer.

Developed through a series of United States Supreme Court cases beginning in 1966, these rights are generally known as "Garrity rights," after the Supreme Court's decision in Garrity v. New Jersey, 385
US 493 (1967). In that case, several New Jersey police officers were targeted during an internal investigation of ticket fixing. The officers were told that they must respond to questions during the investigation or face discharge for insubordination. In order to keep their jobs, the officers complied and answered the questions. The statements made by the officers were then used in criminal prosecutions against them. In overturning the convictions, the Supreme Court held that threatening the police officers with discharge was coercive in violation of the Fifth Amendment.

This case now stands for the principle that using the threat of discharge or any other substantial economic penalty against public sector employees during an investigation of potentially criminal matters is coercive and that any consequent disclosure is  inadmissible in a criminal trial of the employee.

However, the Garrity decision does not mean that government employees may never be compelled to give a statement or testify by threat of discharge. In
Gardner v. Broderick, 392 U.S. 273 (1968) the United States Supreme Court held that the government may threaten an employee with discharge if it grants prosecutorial immunity (a guarantee that the information disclosed will not be used against the employee in a later prosecution) . In Kalkines v.
United States , 473 F.2d 1391, 1393 (Ct. C1. 1973), the U.S. Court of Claims held that an employee can be compelled to answer pertinent questions about the performance of an employee's duties…when that employee is duly advised of his options to answer under the immunity granted or remain silent and face dismissal. In other words, an employee who is granted prosecutorial immunity may be discharged or otherwise disciplined for failing to respond to investigative questioning. This is because the Fifth Amendment prohibits the government only from compelling individuals to disclose information that might be used against them in the course of a criminal investigation and prosecution. The government may compel an employee to make disclosures that will be used for personnel decisions so long as it grants the employee immunity from criminal prosecution based upon those disclosures.

Per the above, members are urged to take heed:

"The APWU advises employees to request the presence of your APWU representative if questioned by a U.S. Postal Inspector or OIG agent, even if you believe you are not guilty of any wrong doing. Keep in mind that they are law enforcement officers who are investigating an internal criminal matter. You should remain silent until you have consulted with your APWU representative or attorney, as appropriate. It is important to ask that you be advised whether or not you are a suspect in a criminal matter. Even if you are told that whatever you say will not be used against you in a criminal proceeding, if it is a criminal matter that is being investigated you should advise the agent that you wish to contact your attorney. Under no circumstances should you sign any forms or make any statement until you have consulted with your attorney. The fact of the matter is that even if a statement you make is not used, it does not necessarily mean you may not be charged in a criminal proceeding.

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