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50

OCTOBER 2015

|

THE FOREIGN SERVICE JOURNAL

STATE VP VOICE

| BY ANGIE BRYAN

AFSA NEWS

Views and opinions expressed in this column are solely those of the AFSA State VP.

Contact:

BryanA@state.gov

| (202) 647-8160

Thanks to the popularity of

police-themed television

shows, most Americans have

grown up knowing about

Miranda rights. But how

many of you know what Wein-

garten rights are?

Instead of skipping ahead

to the next article, indulge

me and continue reading—it

could have a profound effect

on your career.

In 1975 the Supreme

Court ruled that, “in union-

ized workplaces, employees

have the right…to the pres-

ence of a union steward dur-

ing any management inquiry

that the employee reason-

ably believes may result in

discipline.”

In the Foreign Service

context, if you’ve been called

in for questioning by Human

Resources, Diplomatic

Security or the Office of the

Inspector General, and you

reasonably believe that the

interview could lead to disci-

plinary action such as a letter

of reprimand, suspension

without pay or termination

for misconduct, you have the

right to have an AFSA rep-

resentative accompany you

(or, if overseas, have an AFSA

representative participate via

speaker phone or some other

similar arrangement).

These rights have become

known as Weingarten rights.

The twist? By contrast

with Miranda rights, the

office doing the questioning

does not have to inform you

of your Weingarten rights. It’s

up to you not only to know

them, but also to refuse to

answer questions until you

can secure AFSA representa-

tion.

When you invoke your

Weingarten rights, the inves-

tigating official must allow

a reasonable period of time

for a union representative to

attend the interview.

Many of you (in fact, I

hope most of you) are read-

ing this and thinking, “Fine,

but I’m not planning on doing

anything wrong. If I don’t

have anything to hide, why

should I insist on having an

AFSA representative with

me? Wouldn’t that make me

look guilty?”

Over and over again,

AFSA has seen cases where

well-meaning employees

consent to interviews without

requesting our assistance.

Perhaps they’ve been told

that they aren’t the subject

of the investigation, and

that they’re being called in

merely as witnesses. Perhaps

they’ve been told that coop-

erating will help clear up the

matter more quickly, or that

the investigators have “just a

few questions” for them.

Regardless of what

they’ve been told, however,

once that interview begins,

the employee is on the hook

not only for whatever behav-

ior is being investigated,

but also for potentially lying

about it.

Many people, particularly

those who are deeply honest

and law-abiding, become

extremely nervous when

interviewed by a law enforce-

ment official.

It can be easy to get

tripped up or unintentionally

give inconsistent responses,

which leave employees

vulnerable to charges of

lying to a law enforcement

officer—a separate crime in

and of itself that can lead to

the end of one’s career with

the government as well as to

prison time.

The presence of an AFSA

representative during both

witness and subject inter-

views serves several useful

purposes.

The AFSA representative

(1) ensures that the investi-

gator affords the employee

all of his or her rights and

conducts the interview in

an appropriate and profes-

sional manner; (2) requests

clarification of questions

and/or clarifies the employ-

ee’s answer(s); (3) confers

privately with the employee,

if necessary, to answer his/

her questions or provide

guidance; and (4) reviews

sworn statements that may

be requested or required.

AFSA cannot do any of the

above if the employee has

not exercised his or her Wein-

garten rights and insisted

on the presence of an AFSA

representative.

While AFSA will, of course,

agree to be present dur-

ing subsequent interviews,

for some employees there

may be no second interview,

depending on the informa-

tion already volunteered.

The initial interview may

result directly in disciplinary

charges, criminal charges or

pressure to resign in lieu of

such charges being filed.

Save yourself the stress

and the legal problems and

invoke your Weingarten

rights from the beginning—

they’re there for a reason.

For a more in-depth look

at why it’s so crucial to

know your rights, please see

AFSA’s guidance on OIG and

DS investigations at www.

afsa.org/ig-and-ds-

investigation-guidance.

n

If you’ve been called in for questioning by

Human Resources, Diplomatic Security or

the Office of the Inspector General, and

you reasonably believe that the interview

could lead to disciplinary action, you have

the right to have an AFSA representative

accompany you.

Know (and Invoke) Your Rights