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minorities

Language issues become workplace legal issues

Two Whole Foods grocery store employees in Albuquerque were recently suspended after getting in a dispute with their manager over speaking Spanish in the workplace.

That incident raises an employment law question that leaves many Arizona employers scratching their heads: Can employers require their employees to only speak English in the workplace?

The answer to that question, like the gray area that surrounds many legal questions, is “it depends.”

“While there is no specific law that requires a specific language in the workplace, Title VII of the Civil Rights Act and the Arizona Civil Rights Act prohibit discrimination based upon national origin and language is closely tied to national origin,” said Stephanie Quincy, a partner with Steptoe & Johnson LLP in Phoenix. “The Equal Employment Opportunity Commission (EEOC) is a federal agency that enforces Title VII and the Arizona Civil Rights Division of the Arizona Attorney General’s Office enforces the Arizona Civil Rights Act.  Both agencies are very concerned that employers will enact language requirements not because of business necessity, but as a way of excluding certain nationalities from the workplace. The Phoenix office of the EEOC sued a restaurant located on the Navajo Nation for enacting an English-only policy, resulting in years of protracted litigation for the employer.”

That restaurant is not alone. The EEOC recently released figures on what kinds of employment discrimination cases are being brought to the agency and complaints of discrimination based on national origin, including those involving perceived problems with language ability or accent, have increased  77 percent since 1997. The EEOC has suggested that it might be the increasing diversity of the American workforce, but civil rights advocates think it’s more likely due to a climate of fear, particularly in states like Arizona that have been enacting laws hostile to immigrants, both legal and undocumented.

“Generally speaking, English-only rules are not in and of themselves unlawful,” said John Balitis, a director at Fennemore Craig who practices in the labor and employment area. “They are permissible when needed to promote the safe and efficient operation of the employer’s business.”

According to Joseph T. Clees, shareholder, and Alexandra J. Gill, associate, of Ogletree, Deakins, Nash, Smoak & Stewart, there are some circumstances where an English-only rule may be necessary to further a safety, efficiency or other legitimate business concern. The EEOC has provided examples of such circumstances including, communication with customers, employees or supervisors who only speak English; emergency situations; cooperative work assignments where the English-only rule is necessary for efficiency purposes; and to assist supervisors with monitoring of performance.

“This is an extremely high standard and very difficult to meet,” Quincy said. “Furthermore, some of these categories would only permit an English-only rule where the business necessity is present and would not support a rule completely prohibiting non-English languages completely.”
This is where that gray area comes into play when it comes to language in the workplace, experts said.

“If the employer cannot demonstrate that (speaking English) is a ‘business necessity,’ it cannot justify such a rule and could be subject to legal action by any employee who is affected by the policy,” Quincy said. “A policy does not have to be a formal written policy. A rogue supervisor can create a policy by simply telling employees speaking Spanish to quit doing so. Such a policy can almost never be supported when enforced on employee breaks or when employees are having non-work related discussions.”

Because the EEOC has taken the position that English-only policies can violate Title VII, Clees and Gill said employers adopting these policies can face a range of penalties under Title VII if the policy is found to be discriminatory.

“An individual alleging a violation of Title VII may seek to recover damages including back pay, front pay, compensatory damages, punitive damages, and attorneys’ fees,” they said. “Individuals may also request injunctive relief.”

Because of the potential backplash, Clees said employers should carefully analyze their reasoning for instituting an English-only policy prior to doing so.

“Employers should consider whether the policy has important safety justifications and/or business justifications, and whether instituting the policy would be effective in advancing the desired business purpose,” he said. “Employers should also consider whether there are any alternatives to an English-only policy that would accomplish the same goals. If an employer decides to an English-only policy is necessary, it should ensure that employees are clearly informed of the policy, including when and where it applies.”

While there is no precise test for weighing or evaluating the business reasons for a language policy in the workplace, Quincy said the EEOC suggests considering:
· Evidence of safety justifications for the rule.
· Evidence of other business justifications for the rule, such as supervision or effective communication with customers.
· Likely effectiveness of the rule in carrying out obectives.
· English proficiency of workers affected by the rule.

“Employers should only (implemented policies that either completely or partially prohibit the use of any language other than English) if they can articulate a business necessity for such policies,” said Charitie L. Hartsig, an associate at Ryley Carlock & Applewhite. “They should also clearly inform employees of the circumstances under which they will be required to speak only English and the consequences of violating the policy. Limited English-only policies have been allowed under Title VII where the policies are in place to ensure clear communications regarding the performance of dangerous and safety-sensitive tasks. The EEOC presumes that an employer that completely prohibits employees from speaking their native language disadvantages the employee’s employment opportunities on the basis of national origin under Title VII. However, the Ninth Circuit rejected the EEOC’s per se rule. Nevertheless, Arizona employers should be cautious about implementing English-only policies and do so only when there is a business necessity for doing so.”

Despite an employer’s best business intentions, experts said instituting a language policy in the workplace is most likely a powderkeg ready to explode.
“The EEOC presumes that English-only rules applied at all times are discriminatory,” Balitis said. “Because the EEOC looks with disfavor on English-only rules, an employer may be forced to litigate even the most carefully crafted rule.”

Banning Social Media

Social Media Series: Prohibiting Employees’ Use Of Social Media At Work

This article is part of an on-going, social media series.


Because the law still is evolving, many employers are fearful of disciplining and terminating their employees for conduct on social networking sites. While this apprehension is understandable, it need not paralyze employers from protecting their legitimate business interests with an appropriate social networking policy.

Recently, the National Labor Relations Board (NLRB) filed an unfair labor practice charge against American Medical Response of Connecticut for terminating an employee who posted insulting personal remarks about her supervisor on her Facebook page.  Although the parties settled the charge before the hearing, the NLRB has made it clear that it intends to aggressively prosecute employers that discipline employees for this type of behavior. Because the NLRB’s authority reaches both unionized and non-unionized employers, the potential ramifications to employers is widespread.

While there is still plenty of gray area regarding what type of online behavior an employer can prohibit, there is certain employee conduct that employers can forbid in order to protect themselves against unscrupulous employee activity on social networking sites. There are common circumstances of an employee’s online activity that generally remain lawful grounds for discipline.

The clearest circumstance is an employee’s use of social media while on the clock. An employee who engages in online activity for personal reasons at work likely is failing to be productive for the employer, and such conduct may lead to discipline up to and including termination. If the employer intends to prohibit personal use of social media while an employee is on the job, the employer should: (1) implement and distribute a written policy that prohibits personal social networking while at work or while working; (2) ensure that it enforces this policy consistently with all employees so as to avoid claims of discrimination; and (3) have documentation to support the employer’s belief that the employee engaged in such misbehavior at work. If an employee’s job responsibilities require him to be online, the employer should consider appropriate measures, such as whether to block access to social media sites.

Another clear circumstance where an employer can discipline employees for their use of social media is when the employer’s confidential and proprietary information is disclosed through the employee’s social network, regardless of whether such online activity takes place outside of the office and outside of work hours.

So that the employee is clear about how he may, if at all, discuss work through social media, the employer should take some basic precautions: (1) have the employee execute an enforceable contract that prohibits the employee’s use of or disclosure of confidential and proprietary information; (2) require all similarly situated employees to execute the same contract; (3) enforce the breaches of such a contract consistently with all employees who have executed it so as to avoid claims of discrimination; and (4) have evidence to support the employer’s belief that the employee engaged in such misbehavior at work.

While there are clearly social networking activities that an employer can prohibit, it must be careful not to cross the line. Under the National Labor Relations Act, employees are entitled to engage in “protected concerted activities,” which include discussing the terms and conditions of their work between two or more employees. An overly broad social networking policy may violate the act if it interferes with employees’ right to engage in such protected activity.

Carrie Pixler, an associate with Fennemore Craig and a member of the firm’s Litigation Section, co-authored this story.

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What are your thoughts regarding this article?
Your comments won’t go unheard! (Or unread for that matter.)
The authors of this on-going social media series will be back monthly to answer any questions you may have and/or to continue the discussion. So let us know!

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Manage Foreign National Employees - AZ Business Magazine Jul/Aug 2010

State And Federal Laws Are Putting More Responsibility On Businesses To Manage Foreign National Employees

Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act, better known as SB 1070, is due to be implemented this month, and will grant expanded investigation powers to police and enable arrest based on an officer’s reasonable suspicion that an individual is in Arizona illegally.

The difficulty for businesses is obvious – employers are the front line for determining work authorization status. They must be responsive to new layers of enforcement that are focused on immigration, and they must avoid discrimination based on national origin or citizenship status. The issues are complex, dynamic and controversial.

Arizona employers will need to protect the continuity of their work force and staffing levels by mitigating the chances that employees could become incarcerated under this new law. Consult with legal counsel and follow this advice:

Organize and audit your company’s I-9 and e-Verify processes to ensure that your employment verification process is well managed. Employers who are found to employ undocumented individuals could face criminal and civil liabilities.

Properly train your company’s first-line receptionist on how to respond to calls and visits from Immigration and Customs Enforcement (ICE) or local law enforcement asking immigration-related questions.

No employee should be interviewed alone by ICE or by a police officer. Any enforcement visit should include a warrant or ICE Notice of Inspection, which should be immediately and carefully reviewed by an attorney.

Advise employees to carry proper government identification with them at all times, such as a valid driver’s license or a Social Security card.

Employees who are in the U.S. on work status should have on them at all times their immigration document evidencing status and work authorization. The law requires that the original documents, not copies, be presented upon request.

What is the risk to employers?

Employers may be prosecuted for violations of state and federal statutes unrelated to the employer sanctions provisions. For example, the deliberate hire of persons illegally in the U.S. may violate federal employment statutes, criminal anti-smuggling or harboring provisions, and trigger investigation for non-payment of employment taxes and criminal fraud. State statutes like Arizona’s Employer Sanctions Law are the most fearsome, with penalties including the loss of business licenses.

The system for verification of employment eligibility is far from perfect, but the penalties for non-compliance by employers can be substantial. Immigration Reform Control Act (IRCA) penalties include fines ranging from $250 to $10,000 per unauthorized employee, and imprisonment of up to six months or both.

Tools for employers

To better ensure that employees are IRCA work authorized, there are some well-recognized tools. The best is the United States Citizenship and Immigration Services’ e-Verify program. Required in Arizona by the Legal Arizona Workers Act, e-Verify is simple and reliable. It requires that the user sign a memorandum of understanding with the USCIS, and it may be used only for new hires, with a few exceptions for designated federal contractors.

The Social Security Administration’s (SSA) Enumeration Verification Service can be used to verify Social Security numbers (SSN), another method to ensure, at a minimum, that the employee’s SSN matches with his or her name and gender. Information on verification of SSNs is available at 800-772-6270 or online at www.ssa.gov/employer/ssnv.htm. This is a simple, free method not requiring a memorandum of understanding, and can be used to check small numbers of names, or if registered with SSA, groups of more than 50 names.

Congress may speak

As Congress debates comprehensive immigration reform and SB 1070 is tested in court, one thing is clear – federal and state governments are making employers the gatekeepers of legal status. Businesses that thoroughly educate all employees about the implications for each individual, their department and the workplace as a whole will remain a step ahead.

Arizona Business Magazine Jul/Aug 2010