Sunday, March 29, 2015

"English-Only" Rule Violates NLRA

Check out the opinion in Valley Health System, LLC. An NLRB judge (Administrative Law Judge, or ALJ) held that an employer's "English-only" policy violated the National Labor Relations Act (NLRA).

The employer is a hospital with the following policy:
[The employer's] rule requires all employees to 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.”
So, what's the problem? English-only policies are a dangerous game, my friend. First, you've got some discrimination concerns. The EEOC Compliance Manual, Sec. 13 on National Origin Discrimination tells us that English-only policies are okay . . . sometimes:
An English-only rule would be unlawful if it were adopted with the intent to discriminate on the basis of national origin . . . . An English-only rule is justified by "business necessity" if it is needed for an employer to operate safely or efficiently. The following are some situations in which business necessity would justify an English-only rule: 
  • For communications with customers, coworkers, or supervisors who only speak English 
  • In emergencies or other situations in which workers must speak a common language to promote safety 
  • For cooperative work assignments in which the English-only rule is needed to promote efficiency 
  • To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers.
So, why did this policy go down in flames under the NLRA? Per the ALJ's opinion:
I conclude that employees would reasonably construe Respondents’ English-only rule to restrict them from engaging in concerted activity. To that end, I find Respondents’ rule akin to rules that infringe upon an employee’s right to engage in “negative speech” and “negative conversations.” Because Respondents’ 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. As such, I find that Respondents’ language restrictions would prohibit speech that “cut(s) to the very essence of activity which the Act protects because all other actions contemplated by the statutory scheme flow out of employees’ discussions about their wages, hours and other terms and conditions of employment . . .”  
Even assuming EEOC’s standard is applicable in this case, I find Respondents’ rule is not justified by business necessity. Here, Respondents argue that their rule is justified in order to maintain hospital efficiency and minimize disruption in patient care by employees speaking in languages other than English . . . . However, Respondents’ English-only rule goes far beyond patient-care areas, where courts have afforded hospitals latitude in restricting Section 7 rights. Instead, Respondents’ rule requires employees to speak only English while on duty, between themselves, staff, customers, visitors, and in non-patient areas . . . . 
Accordingly, I find that Respondents violated Section 8(a)(1) by maintaining an unlawful English-only rule to the extent it requires employees to speak and communicate only in English in all areas to which patients and visitors have access, other than immediate patient care areas.
Well, that's certainly a broad interpretation of the NLRA (at this point, employers should expect no less). That said, one ALJ's opinion hardly resolves the issue for all time. English-only policies are a mine field, and this case is just one example of a detonation.