Representation Rights

CCR section 599.964 states that employees suspected of violating the substance abuse policy shall be entitled to representation:

• during any interrogative interviews that could lead to a decision by the appointing power to take adverse action against the employee
• in any discussions with the Medical Review Officer

These provisions are consistent with the state "Robinson" rights and the federal "Weingarten" rights. The following information is intended to provide additional guidance on when the right to representation is appropriate.

Whether or not a meeting is held with a significant purpose to investigate facts to support adverse action is an objective inquiry based upon a reasonable evaluation of all the circumstances, not upon the subjective reaction of the employee or the subjective opinion of the interviewer. Since any alleged or suspected violation of the substance abuse policy is grounds for adverse action any discussions with employees before, during, or after a drug test probably meets the definition of an investigatory interview. Employees are not entitled to have a representative present during routine business communications which occur between a supervisor and employee during which no discipline is contemplated.

If the meeting is not disciplinary in character, but explanatory in the sense that the employee is only told what the employer intends to do (i.e., order employee to take a drug test) and the employee is not required to respond, there is no right to representation.

"Disciplinary Action" refers to formal adverse action and includes dismissal, demotion, reduction of pay, suspension without pay, and a letter of formal reprimand. It is the interpretation of CalHR that an informal letter of instruction from a supervisor is not "disciplinary action" because it is not adverse action.

There are limitations on the right to representation. These limitations normally are:

1. The right to representation arises only when the employee requests representation. There is no duty to inform employee of right to representation unless an MOU states differently.
2. The representative need not necessarily be a union agent. Employee may have a friend or advisor as his/her representative.
3. The representative may not disrupt the interview.
4. The employer should not bargain with the employee’s representative about appropriate disciplinary action.

Certain problem situations may arise. These include:

1. If the employee wants a representative but does not know where to obtain one, inform the employee he/she may choose any representative other than a designated managerial, supervisory or confidential employee.
2. Uncertainties over an employee’s right to representation should be resolved in favor of representation. This will protect the employee while generally imposing little burden on the employer.

The Public Safety Officers’ Procedural Bill of Rights Act, Government Code (GC) sections 3300 through 3311, provides that all employees designated as "peace officers" have the right to representation upon request whenever an interrogation focuses on matters which are likely to result in punitive action against the officer. Additional provisions in this regard are set forth in GC section 3303 and are entirely consistent with the "Robinson" rights.

Consult with the DGS Labor Relations Office when in doubt regarding the appropriate course of action in particular situations. You should also review all MOU’s to note any differences to the discussion above.