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.
Because you’re conscientious about employment law, you’ve put up the
required safety and health, family leave, 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 federal Family and Medical Leave Act (FMLA) was one example. What the
statute says,
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. And it’s not just here in
The WolfBlock study cites a
Jersey
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,
and Mazur recommend this path of action: “Begin with the law, look for any
guidance, and [ultimately], 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 CED.
State Law Often Outweighs the Federal!
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but still get tripped up by state statutes you weren’t even aware of. Get the
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