[lg policy] Could you please speak English?

[Harold Schiffman]

Could you please speak English?


By Tim Twigg and Rebecca Crane

Our country has often been called the “melting pot” — a place where
people come from all over the world to live and thrive. The reality,
however, is that we don’t really “melt” into one culture, or even one
language. On any given day, we can encounter people whose primary
language is something other than English, and this can create
misunderstandings, problems, and hurt feelings in the work
environment.

This is particularly true since many dental offices are now more
culturally diverse than ever before — from the dentist and staff to
the patients. Today, many employees do not speak English as their
primary language, and it is natural for them to switch from English to
their native language, especially if other employees speak the same
native language.

This leads many dentists to want to require employees to speak only
English when at work (aka English-only policies), but can we really do
this?

According to the Equal Employment Opportunity Commission (EEOC), we
can’t. With a few exceptions, the EEOC generally contends that
requiring employees to speak only English at work can be a form of
discrimination, and constitutes disparate treatment of protected
groups of individuals, and might create an atmosphere of inferiority,
isolation, and intimidation based on national origin.

English-only policies can be implemented, but only in limited
circumstances when the rule can be justified by “business necessity.”
In other words, the requirement to speak only English must be rooted
in the need to keep the business safe and efficient and, therefore,
having this rule fulfills this purpose. Here are some scenarios in
which having an English-only policy might be permissible:

Communications with patients, coworkers, or supervisors who speak only English
Emergencies or other situations in which workers must speak a common
language to promote safety
Cooperative work assignments in which the English-only rule is needed
to promote efficiency
To enable a supervisor who speaks only English to monitor an employee
whose job duties require communication with coworkers or patients

If you want to implement an English-only policy at your practice, keep
the following in mind to avoid liability:

Limit the policy’s scope. Rarely will it be a “business necessity” to
prohibit another language from being spoken when the employee is not
working (i.e., rest breaks and/or meal periods). Apply your policy to
very specific situations in which English must be spoken — for
example, during patient treatment or at staff meetings.
Don’t use an English-only policy to address harassment or behavior
problems. Suspicions that employees may be badmouthing others in a
different language may not be enough to support an English-only
policy. Manage these issues through your anti-harassment policy or
other applicable policies.
Carefully document the business necessity behind the policy and the
restrictions. This documentation should include recording the problems
that result from a lack of effective communication (i.e., security
and/or safety problems, patient complaints, employee complaints,
etc.). Be specific about the circumstances that led to the
implementation of the policy.
Communicate the policy clearly with all employees. Administer the
policy consistently with all staff members (i.e., don’t ban Spanish,
but allow Italian). Consider providing the policy in an employee’s
native language to ensure effective communication of what is expected.
Note: If the employer neglects to notify employees of the English-only
policy and then disciplines or discharges the employees, the EEOC may
consider this an act of discrimination and rule accordingly.
Look for other alternatives to an English-only policy before
implementing one. If the English-only policy is ever challenged, your
defense may be a lot stronger if you can show the policy was a last
resort to solve some problems.

When a violation of the English-only policy occurs, bring it to the
individuals’ attention and document the type of violation and any
resulting disciplinary action you take. (Call our office for a copy of
our Employee Counseling Memo, Form No. 418.) The policy and the
documentation serve as an excellent defense against any charge of
discrimination.

If you think an English-only rule is right for you, proceed
cautiously, bearing in mind the suggestions and recommendations
provided. Not doing so may bring about some liability by a staff
member who thinks he or she is being discriminated against. Carefully
consider whether implementing this policy is worth the risk since you
may have to defend yourself in front of a judge and jury, and you may
not prevail.

Tim Twigg is the president of Bent Ericksen & Associates, and Rebecca
Crane is a human resource compliance consultant with Bent Ericksen &
Associates. For 30 years, the company has been a leading authority in
human resource and personnel issues, helping dentists successfully
deal with the ever-changing and complex labor laws. To receive a
complimentary copy of the company’s quarterly newsletter or to learn
more about its services, call (800) 679-2760 or visit the website at
www.bentericksen.com.

http://www.dentaleconomics.com/index/display/article-display/1111218123/articles/dental-economics/volume-102/isue-5/practice/could-you-please-speak-english.html




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