Do you have a right to a rep in a workplace disciplinary hearing? That depends

Q: When my supervisor pulls me into the conference room to "counsel" me — aka rip me to pieces — he always brings in the company's human resources officer. He says it's for "both of us," but she sits there writing notes that make him look good and me look like a jerk. I've learned I cannot trust her or what she writes.

Things have been heading from bad to worse and I've been accused of something I absolutely did not do. I've been ordered to be present for an "investigative interview" tomorrow morning, and this HR person, who I absolutely don't trust, plans to interview me. My wife tells me I can have a representative of my own present, who can take notes for me. Is this true?

A: While those who work in a union environment can have their shop steward sit in on disciplinary meetings, non-union employees don't have this protection. Your wife refers to the National Labor Relations Board's former "Weingarten" rule that extended unionized employees' statutory right to a witness to non-union employees, who could then have a witness present during investigatory interviews that could reasonably result in discipline.

According to a May NLRB ruling, the National Labor Relations Act doesn't grant non-union employees the right to have a witness present during an investigatory interview. Depending on your company's policies, however, you may have the right to record this meeting on your smartphone. Alaska, along with 37 other states, allows face-to-face interviews to be recorded even if only one party (you) consents (AS 42.20.300).

Unless your organization has a specific policy against your recording meetings, you can thus record and later transcribe the full meeting. Then, if another individual presents a slanted version of what transpired, you'll have proof concerning what actually occurred and was said.

Q: We're about to terminate an employee and worry she'll take trade secrets when she leaves. Although we'll shut off her computer and internet access during her termination interview, how do we protect what she might already have taken?

A: Although common law provides employers some protection from employees or former employees misusing trade secrets, your best protection starts before you fire an employee. Hopefully, you've outlined your company's expectations concerning your company's intellectual property and confidential and proprietary information in your employee handbook and your employee's hiring agreement. This agreement needs to include a clause outlining your employee's post-employment obligations.

You can also ask your employees to sign confidentiality agreements prior to commencing employment. These agreements can be particularly helpful if an employee tries to steal trade secrets during or after employment.

Next, control and safeguard access to key elements of your intellectual property. For example, we protect our training PowerPoints by not letting them be electronically transmitted, maintaining oversight of who downloads them and letting clients know, when they request them, that we maintain tight access over these materials.

What if you haven't acted preventatively? Courts in multiple jurisdictions have held that employees owe a duty of good faith and fidelity toward their employers, which requires that they maintain the confidentiality of, and not misuse, trade secrets they are exposed to during and after their employment. You can also reinforce your expectations orally or in written form as you terminate your employee.