Are You Talking About Me? Si. Do You Mean Yes? No.

What with changing demographics, retention woes, and increased hiring demands, more and more businesses are concerned about dealing with employees whose native language is not English. It’s a natural temptation to say “Everyone has to speak English at work.” But can you put out a blanket mandate like that? You can try, but (a) it won’t work very well, and (b) the courts won’t buy it.

In general, blanket restrictions against using languages other than English won’t be acceptable. It’s best to base restrictions on business necessity; that is, on communication concerns, workplace safety, or productivity.

Let’s divide this question into two issues: hiring and working environment.

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English Only–Si. Yes you can have an English-only policy, without discriminating. It’s all laid out in a new March 25 audio conference. Satisfaction is ensured. Click for info

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Hiring and Fluency Requirements

As a practical matter, says attorney Sandra Rappaport, English-fluency requirements are usually going have a disparate impact on individuals of some particular national origin. That essentially means that the employer needs to be able to justify a fluency requirement based on some business reason, such as the need to communicate effectively with customers or clients, or for safety.

Rappaport, a partner with Hanson Bridgett in San Francisco, made her comments in a recent issue of California Employment Law Answers.

In administering fluency requirements, she says, be aware that the business need for an English-fluency requirement may not be the same from job to job. Salespeople who deal with an English-speaking public do likely require effective communication in English in order to perform their jobs.

However, your warehouse workers who do not interact with English-speaking customers may not need to speak English perfectly in order to perform their jobs effectively, and to impose an English-fluency requirement on those workers could be found to be discriminatory. However, it may be lawful to require them to speak some English for safety or efficiency reasons.

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English Only During the Workday

Many employers want to adopt rules prohibiting languages other than English at work. Employers should not adopt or enforce any policy that limits or prohibits the use of any language in the workplace at all times, says Rappaport. Align your policy along with business necessity, and do not attempt to control languages used during nonduty time like breaks and mealtimes, she advises.

It’s also important to apply your rules to all foreign languages rather than certain select ones.

Questions from the ‘Red Book’

If you are considering a policy that restricts your workers’ languages, answer the following questions taken from BLR’s famous “Red Book.”

Is there a sound business necessity? (For example, is communication between customer and employee hampered if the employee does not speak English?)

Are there indications or complaints that employees are not understanding instructions?

Is failure to communicate in English reducing productivity?

Are there concerns that safety will be compromised if employees cannot communicate in English?

EEOC Guidelines for English-Only Policies

Finally, in judging your situation, consider these examples issued by EEOC of business necessity that would justify an English-only policy:

For communications with customers, co-workers, or supervisors who speak only English

In emergencies or other situations in which workers must speak a common language to promote safety

For cooperative work assignments in which the English-only rule is needed to promote efficiency

To enable a supervisor who speaks only English to monitor the performance of an employee whose job duties require communication with co-workers or customers

In the next issue of the Advisor, we will discuss implementing an English-only policy and introduce an up-to-the-minute audio conference that will answer all your English-only questions.