Three Supreme Court Rulings Every Government Employee Should Know About

The biggest problem most employees face when going in for an investigative interview or interrogation by a manager. Postal inspector or inspector general is that the employee often isn't aware of his or her rights. In many cases management, the postal inspector nor the inspector general are required to inform you of these rights. What you don't know can hurt you.

The United States Supreme Court has granted three major rights to employees over the years these are the Weingarten Act of 1975 (also known as Weingarten Rights), the Garrity Warning and the Kalkines Warning. These rights are not negotiated through any contract, nor can they be taken away through contract negotiations. These rights were granted by the United States Supreme Court. Only the United States Supreme Court can over turn their decision. Before you get too excited, the United States Supreme Court has changed it's mind several times on the first right I will talk about.

First let's talk about the one that you will most likely use during your postal career, the Weingarten Rights. As it stands the Weingarten Rights only apply during and investigative interview or interrogation by management, postal inspectors or an inspector general. They don't apply during an official discussion, because an official discussion can't be used as discipline. For that reason you are usually not able to grieve an official discussion. It also doesn't apply during a fitness for duty examination.

Also the Weingarten Rights ONLY apply to employees represented by a union. Employees who work in a company without a union are not protected by the Weingarten Act of 1975. This may change. The United States Supreme Court at one time said that the Weingarten Act applied to all employees; it has since reversed its ruling and stated that it applies only to employees who are represented by a union. If someone challenges the ruling and the United States Supreme Court agrees to hear the case, the Court may change its ruling. But as of the date this article was written, the Weingarten Rights only protect union represented employees.

Under the Weingarten Act whenever an employee being questioned by management, postal inspectors or an inspector general and feels that the questioning may lead to discipline action or arrest, the employee has the right to be represented by a union official. Management, neither the Postal Inspectors nor the Inspector General Agent are required by law to tell you about your Weingarten Rights. It's up to you to ask for them.

To invoke your Weingarten Rights when taken in for any questioning by management simply say: "If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I request that my Shop Steward or union officer be present at the meeting. Without representation, I choose not to answer any question."

Of course whoever is doing the interview will tell you that you don't need your steward. Repeat the above statement. Don't fall into the trap where they trick you into waiving your rights. If you are speaking with a postal inspector or an inspector general, it will always lead to discipline or your removal and can lead to you being arrested. Your steward knows more about your rights and an experienced steward can spot traps being laid out for you. It is not illegal for a postal inspector or inspector general agent to lie to you during an interview or interrogation. Lying is a valid interrogation technique.

During the interview your steward isn't just there to be a fly on the wall. The steward may ask questions on your behalf, may speak with you in private without the inspectors or management present. The steward may also clarify statements for you. The steward is there to represent you. If no steward is available the meeting must be stopped until a steward is available. Remember, if an inspector is going to arrest you they don't need to do an interview before they arrest you. They can pull you off the work room floor and arrest you on the spot. So don't let them make you think that by not having your steward present will increase your chances of saving your job.

For additional information concerning your Weingarten Rights go to http://www.nalc.org and look up the April 2008 issue of Contract Talk newsletter, page 27.

The next two issues we will discuses are warnings and pertain to public employees, be it at the local city level or the federal level. As public employees we fall under different rules then private sector employees. If you ever get to the point where you are faced with these warnings, you should have already invoked your Weingarten Rights. You are way past the point of an official discussion.

First let's start with the Kalkines Warning. During an interview, before it turns into an interrogation, usually you will be read a statement by management stating that you are required to answer their questions truthfully and cooperate with their investigation fully. This is true. Making false or misleading statements is a criminal offense.

However, there is the little mater of the Fifth Amendment. When the investigation gets to the point where an employee may criminally accuse themselves by their answer, it's a good time to take the Fifth. It's not that easy for public employees to stand on the Fifth Amendment.

Where public interest is at stake the manager or inspector may choose to waive using any statements against the employee in any criminal proceedings. The manager or inspector does this by issuing the employee their Kalkines Warning. The Kalkines Warning goes roughly as follows:

"You are going to be asked a number of specific questions concerning the performance of your official duties as an employee of the United States Postal Service. You have a duty to reply to these questions. Agency disciplinary proceedings resulting in your discharge may be initiated as result of your answers. However, neither your answers nor any information or evidence which is gained by reason of such statements can be used against you in criminal proceedings. You are subject to disciplinary actions up to and including dismissal if you refuse to answer or fail to respond truthfully and fully to any question."

Now this doesn't mean that the Postal Service can't criminally prosecute you. What it means is that they can't use your statements or any evidence they gained from your statement to prosecute you. So at this point you can't invoke your Fifth Amendment Rights, since the Postal Service or other governmental agency has already stated that your statement can't be used against you.

The next warning is the Garrity Warning. At this point your investigatory interview has changed into a criminal investigation or an all out interrogation. You will usually be given your Miranda Rights along with the Garrity Warning. I can only pray that you have your steward or union official present with you at this point. The inspectors may or may not have any supporting evidence at this point. Remember they can legally lie to you. If they say they have video tapes, ask to see them before you answer questions about what may or may not be on those tapes, if in fact the actually exist. Inspectors often use this as a bluff to get you to incriminate yourself when they have only the word of management to go by.

Remember, if the inspectors had actual evidence against you they don't need to interview you. They can swear out a warrant and arrest you on the work room floor or anywhere else they please. Postal Inspectors are Federal Law Enforcement Officers; Inspector General Agents have Federal arrest powers also. Both have access to federal judges who can and will issue a warrant for your arrest if the inspectors can show good cause to the court.

Because of this you have the right to invoke your Fifth Amendment Rights at this point. The Garrity Warning will be phrased something like this:

"You have the right to remain silent if your answer may tend to incriminate you. Anything you say or do may be used as evidence against in both an administrative proceeding and any future criminal proceedings involving you. If you refuse to answer the questions posed to you on the grounds the answer may tend to incriminate you, you cannot be discharged solely for remaining silent. However your silence can be considered in an administrative proceeding for its evidentiary value that is warranted by the facts surrounding your case. This interview is strictly voluntary and you may leave at any time."

Now those are a confusing set of instructions. Here is what they mean to you. First you are in a criminal investigation. At this point you may seriously need a lawyer before going any further. A steward isn't a lawyer and may be compelled to testify against you in a court of law. So make no statement to your steward that may be incriminating.

Secondly although your silence can't be used against you in a court of law, it may be considered by the United States Postal Service, or any other governmental agency, when deciding on disciplinary action against you. Now just because you refused to answer, doesn't mean you are guilty. They must have additional evidence to support their action against you.

For example if they actually do have a tape of you stealing mail, they don't need your statement to arrest or terminate you. However if all they have is hearsay information with no supporting evidence, they will be hard pressed to terminate you just because you refused to answer their questions and exercised your right to remain silent.

You have the right to leave the interview at any time. You don't have to stay; you can get up and walk out at any time. But remember depending on the evidence the inspectors have against you, they may be able to arrest you once the interview is over or management may walk you off the work room floor.

You can get additional information concerning the Kalkines and Garrity warnings at http://www.nalc.org in the July 2005 issue of Contract Talk.

As you can now see more clearly that what you don't know about your rights can hurt you. It begins with the enforcement of your Weingarten Rights. It is vital that you have a shop steward or union official present with you when during an investigation or interview.

So the most common words out of your mouth EVERY TIME a manager or inspector request to speak with you is "If this is going to lead to disciplinary action against me I request to have my shop steward or union official present." If they say no immediately request to speak with your steward after the meeting if you feel the meeting may lead to disciplinary action against you. Remember you can request your steward at any time during the meeting if you believe the meeting may lead to disciplinary action being taken against you.