The issue of whether or not an employer can have or enforce an “English-only” rule is now being considered on a federal level. This issue has focused on whether such policies discriminate on the basis of national origin in violation of Title VII of the Civil Rights Act of 1964. Some states have addressed this issue and now the National Labor Relations Board (NLRB) is attempting to interject itself into this debate.
Last month, in Valley Health System, an NLRB Administrative Law Judge concluded that a healthcare provider’s English-only rule violated employees’ rights to engage in protected concerted activity under the National Labor Relations Act.
The policy in Valley Health System required that all employees speak and communicate only in English “when conducting business with each other,” “when patients or customers are present or in close proximity,” and “while on duty between staff, patients, visitors [and/or] customers … unless interpretation or translation is requested or required.”
The ALJ concluded:
Employees would reasonably construe the English-only rule to restrict them from engaging in concerted activity…. [The] English-only rule is vague as to time and location (i.e., must use English in patient and non-patient areas, in patient access areas, and between employees, staff, customers, patients and visitors), it infringes on an employee’s ability to freely discuss and communicate about work conditions, wages and other terms and conditions of employment.
What does this decision mean for employers?
- It is only one decision of one ALJ. It is not binding on the Board, and it is not the law of the land—yet! However, given how broadly the NLRB currently is interpreting employees’ section 7 rights under facially neutral workplace policies, businesses should nevertheless pay close attention.
- It may not be sufficient that an English-only policy pass muster under Title VII as supported by a “business necessity.” Regardless of the business need for employees to communicate in English, a policy still may fall as unlawful if it prohibits or restricts employees from communicating about workplace terms and conditions.
As a final note, employees who only speak English complain that the bi-lingual employee is “talking about me.” It can create a morale problem. Both sides need to understand those who speak more than one language need to be considerate of those who do not, and those who do not, need to be more understanding of those who do.
As usual, I will keep you posted on any changes.