Employment Law Advisory for May 10, 2012: Employers Are Wise to Avoid English-Only Policies in Most Circumstances

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As the workforce has become more diverse in recent years, some employers have considered adopting policies that require employees to speak only English at work. Organizations adopting such policies often believe that so-called “English only” rules enhance communication among employees and prohibit behavior that is rude or inconsiderate to employees who speak only English. The law permits implementation of English-only policies only in very limited circumstances, however, and employers may expose themselves to liability if they adopt such a policy without careful consideration. 

Both state and federal law regulate an employer’s ability to adopt policies limiting the use of a language in the workplace. California’s Government Code section 12951 prohibits employers from limiting or prohibiting the use of any language in the workplace unless:

  • the restriction is justified by a business necessity, and
  • the employer has notified employees of both the circumstances when the language restriction is required to be observed, and of the consequences for violating the language restriction. 

The law defines the term “business necessity” quite narrowly as “an overriding legitimate business purpose such that the language restriction is necessary to the safe and efficient operation of the business, that the language restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice that would accomplish the business purpose equally well with a lesser discriminatory impact.” The federal Equal Employment Opportunity Commission also scrutinizes English-only policies closely to determine if they are justified by “business necessity.”  

Under the applicable law, an English-only policy is not justified merely because monolingual English-speaking employees regard others as rude when they speak in languages other than English at work, or because English speakers might want to understand all the conversations that occur in the workplace. Policies prohibiting use of languages other than English at all times would almost certainly constitute an unlawful business practice because no justification exists to prohibit the use of other languages during breaks or other non-working time, during private conversations between employees that do not relate directly to work, or during conversations among employees who all speak the language in question. More limited policies that require the use of English in specific circumstances while permitting employees to speak other languages at other times are more likely to withstand scrutiny. Employers might be able to justify a policy requiring the use of English when clear communication is required among a group of employees and one or more of the employees speak only English, as in the case of a team meeting. Employers should not apply English-only policies to employees whose jobs do not logically require that they speak English, however. 

Employers who adopt English-only policies expose themselves to a risk of claims for discrimination.   Since the circumstances in which an English-only policy might be justified are quite narrow, employers should not adopt such a policy before conferring with counsel, and any such policies should be carefully drafted and narrowly tailored. If you have questions regarding English-only rules or any other issue related to employment law, please contact one of our attorneys:

Daniel F. Pyne III
Richard M. Noack
Ernest M. Malaspina
Karen Reinhold
Erik P. Khoobyarian
Shirley Jackson

 

Published In: Administrative Agency Updates, Civil Rights Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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