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English-Only Rules in the Workplace Can Be a Legal Minefield
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<span id="gmail-ctl00_PlaceHolderMain_ctl03_lab_CreatedBy" class="gmail-clearfix">By <span id="gmail-ctl00_PlaceHolderMain_ctl03_lab_CreatedBySpan">June Bell</span></span>
<span id="gmail-ctl00_PlaceHolderMain_ctl03_lab_Created" class="gmail-clearfix">Apr 21, 2017</span>
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<div id="gmail-ctl00_PlaceHolderMain_ucc_ArticleImage_rif_Image__ControlWrapper_RichImageField" class="gmail-ms-rtestate-field" style="display:inline"><div class="gmail-ms-rtestate-field"><img alt="" src="https://cdn.shrm.org/image/upload/c_crop%2ch_4051%2cw_7201%2cx_0%2cy_676/c_fit%2cf_auto%2cq_auto%2cw_767/v1/Legal%20and%20Compliance/clothing_retailer_sif6hl?databtoa=eyIxNng5Ijp7IngiOjAsInkiOjY3NiwieDIiOjcyMDEsInkyIjo0NzI3LCJ3Ijo3MjAxLCJoIjo0MDUxfX0%3d" style="border-width: 0px; border-style: solid; border-color: currentcolor; border-image: none;"></div></div>
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<div id="gmail-ctl00_PlaceHolderMain_ctl06__ControlWrapper_RichHtmlField" class="gmail-ms-rtestate-field" style="display:inline"><p class="gmail-shrm-Element-P gmail-ZWSC-cleaned">A
clothing retailer accused of forbidding three San Francisco workers
from speaking Spanish at work and then allegedly retaliating when they
complained is being sued for civil rights violations and discrimination.</p><p class="gmail-shrm-Element-P">Filed
by California's Department of Fair Employment and Housing on behalf of
three employees of Forever 21's Union Square store, the lawsuit claims
the company's HR department "was dismissive and indifferent" to the
workers' concerns, repeatedly ignoring workers' calls and voicemail
messages and "failing or refusing to take corrective action." </p><p class="gmail-shrm-Element-P">The
two cashiers and a maintenance worker were threatened with termination,
disciplined and subjected to extreme scrutiny, the lawsuit said.</p><p class="gmail-shrm-Element-P">Los Angeles-based Forever 21 denied having an English-only policy in its stores, <a href="http://www.sfgate.com/bayarea/article/Forever-21-accused-of-illegally-implementing-11037889.php" target="_blank">telling The San Francisco Chronicle</a> that it supports inclusion and diversity. </p><p class="gmail-shrm-Element-P">[<em>SHRM members-only HR Q&A: </em><a href="https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/californiacananemployerhaveapolicythatrequiresemployeestospeakonlyenglishwhileatwork.aspx" target="_blank"><em>Can a California employer have a policy that requires employees to speak only English while at work?</em></a>]</p><p class="gmail-shrm-Element-Subtitle">Business Necessity</p><p class="gmail-shrm-Element-P">Language
diversity is a hallmark of the Golden State, which has the country's
highest percentage of residents who speak only Spanish—13.7 percent, or
about 4.3 million people, according to <a href="http://www.statisticbrain.com/spanish-speaking-state-statistics/">U.S. Census figures</a>. </p><p class="gmail-shrm-Element-P">California <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=12940.">law</a>,
however, does allow employers to limit or prohibit the use of any
language on the job, provided the restriction is justified by "business
necessity." </p><p class="gmail-shrm-Element-P">An employer must be able to
show that its language policy fulfills "an overriding legitimate
business purpose," such as being "necessary to the safe and efficient
operation of the business." </p><p class="gmail-shrm-Element-P">State law also
mandates that employers inform workers when the restriction is in
effect and then let them know the consequences for violating it.</p><p class="gmail-shrm-Element-P">Employers
that want to implement a language policy must be able to show that it
stems from more than a mere preference for English in the workplace,
said John Zaimes, an attorney with Mayer Brown in Los Angeles.</p><p class="gmail-shrm-Element-P">For
example, in workplaces such as construction sites and emergency
rooms—where safety and communication are critical—business leadership
could make a compelling argument about the necessity of having employees
communicate in a single language. </p><p class="gmail-shrm-Element-Subtitle">Little Guidance</p><p class="gmail-shrm-Element-P">California
law, Zaimes said, "leaves a lot of room for argument about whether a
particular restriction is necessary for the safe and efficient operation
of the business." And courts offer scant guidance for interpreting
which conditions constitute a business necessity for mandating an
English-only policy. </p><p class="gmail-shrm-Element-P">In <a href="http://www.leagle.com/decision/In%20CACO%2020110324070/BUENVIAJE%20v.%20PACIFIC%20BELL%20DIRECTORY">a 2011 decision</a>,
the California Court of Appeal sided with Pacific Bell Directory, which
had fired a Filipino employee who spoke Tagalog on the job. </p><p class="gmail-shrm-Element-P">The
worker sued, claiming she was fired for not speaking English. However,
Pacific Bell Directory said she was terminated for violating
anti-harassment policies because she bullied co-workers—in Tagalog. </p><p class="gmail-shrm-Element-P">The
business said its English-only policy was necessary so that
English-speaking managers could understand workers' conversations and
prevent such harassment. </p><p class="gmail-shrm-Element-P">"To me, that's a
pretty low standard," Zaimes said. "Because any employer can say, 'Yeah,
we need people to speak English so we can properly supervise them.' " </p><p class="gmail-shrm-Element-Subtitle">'Proceed with Caution'</p><p class="gmail-shrm-Element-P">"At
least in California, the wind is blowing against having an English-only
policy," said Tyler Paetkau of law firm Hartnett, Smith & Paetkau
of Redwood City. "Generally, the advice is to proceed with caution." </p><p class="gmail-shrm-Element-P">If
businesses are determined to institute a language policy, the terms
should be put in writing, reviewed with managers and supervisors, and
crafted to be "very limited in terms of prohibiting other languages,"
Paetkau said. Businesses that implement English-only policies should
include employee training with mandated sexual harassment-education
programs.</p><p class="gmail-shrm-Element-P">Businesses keen on adopting
English-only policies might be best served by finding a practical middle
ground, such as requiring retail employees to speak English on the
sales floor unless customers initiate conversation in another language
or ask for help from someone who speaks their native language. </p><p class="gmail-shrm-Element-P">HR
professionals should consider whether there's a clear-cut business
necessity for requiring workers to use English on breaks when making
personal calls, as one of the Forever 21 employees claimed in the
lawsuit that he was required to do. </p><p class="gmail-shrm-Element-P">Zaimes
advises HR professionals to "consider being a little bit of a devil's
advocate" if their employer has adopted a broad language policy by
pointing out that it can make the business vulnerable to allegations of
discrimination and retaliation if workers who speak a language other
than English are disciplined, demoted or terminated. </p><p class="gmail-shrm-Element-P">Even
if the charges are ultimately unfounded, the exoneration can come with
negative publicity, legal defense costs and aggravation. </p><p class="gmail-shrm-Element-P">"I
just don't think many employers want to tangle with this at all because
it's such a minefield," he said. "There are no hard and fast rules
here. It's still an evolving area of the law."</p><p class="gmail-shrm-Element-P"><em>June D. Bell, a regular contributor to SHRM, covers legal issues for a variety of publications.</em> </p><p class="gmail-shrm-Element-P"> </p><blockquote style="margin:0px 0px 0px 40px;border-width:medium;border-style:none;border-color:currentcolor;padding:0px"><p class="gmail-shrm-Element-P"><em>Was
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