Federal and state governments require multiple notices to employees, but do they also require them in foreign languages for non-English-speaking workers? The short answer … maybe.
You probably know that with the recent increase in the minimum wage, you had to tear down the old required poster and replace it with a new one.
Of course, since you’re conscientious about employment law, you’ve done that. Just like you’ve put up the required safety and health, FMLA, USERRA, and other postings. And you’ve supplied your employees with required information under ERISA and COBRA, if you provide those plans.
There’s just one problem with all the information you’ve given your workers. They don’t understand a word of it. They don’t speak English.
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There’s the dilemma: The law requires you to provide certain information. But does the law require you to also translate it into whatever language your workers do speak?
This question was partially answered in a fascinating study by attorneys Amanda E. Layton and Lauren M. Mazur of the WolfBlock law firm, as reported on the Metropolitan Corporate Counsel website. The authors analyzed major laws with employee notification requirements to see if they also mandated that the requirements be understandable to non-English speakers.
The short answer: Maybe.
The Family and Medical Leave Act (FMLA) was one example. What the statute says, Layton and Mazur report, is that “where [a] workforce is comprised of a significant portion … not literate in English, the employer shall [provide] notice in a language in which the employees are literate.”
A “significant portion” … whatever that is
The key words are “significant portion.” Is that half? A quarter? As little as 5 percent? FMLA doesn’t say, and court decisions don’t either. That means whether you’re in compliance or not is up to the Labor Department inspector sitting in your reception area. Maybe ask if he or she wants a fresh cup of coffee.
The authors’ recommendation: “Pay the cost of having the notice translated. A minor cost up front may provide greater savings in the face of an employee FMLA claim.”
ERISA and COBRA place similar responsibilities on employers. COBRA says its notice materials must be understandable to “the average plan participant,” whatever that means.
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ERISA is clearer. It demands a “notice of foreign language assistance, written in the foreign language” only if specified percentages of the workforce are non-English speakers. Where these plans are supplied by third party providers, they usually take care of the requirement. You might want to check that this responsibility is fulfilled, however.
States Get In on the Act
As in so many areas, the states also have spoken on the foreign language notice issue. The WolfBlock study cites a New Jersey whistleblower protection law that requires notice in English, Spanish and, “at the employer’s discretion, any other language spoken by … employees.” Our own look into this issue discovered Chapter 160 of the Iowa Labor Services law. It mandates having interpreters on hand at every site where more than 10 percent of the workforce speak a common language other than English.
With terms like “average plan participant” and “significant portion” lacking definition, Layton and Mazur recommend this path of action: “Begin with the law, look for any guidance, and [untimately], rely on common sense.”
Fortunately, there is some guidance on issues like this, and especially on state law differences from the Federal. We’ll explain where to find it tomorrow/mañana in HR Daily Advisor.
State Law Often Outweighs the Federal!
It’s true. You can comply completely with FLSA, FMLA, and other federal law but still get tripped up by state statutes you weren’t aware of. Get the whole picture with your state’s edition of BLR’s What to Do About Personnel Problems in [Your State] program. Try it free! Click to learn more.
It is rather simplistic to suggest translating information notices, assuming that all employees who are not fluent in English are fluent in one common language. In my experience there may be 15 to 20 completely different languages and some employees are not able to read and comprehend legal notices in their spoken language.
These situations make providing vital information much more complex.