Workplace rules which require employees to speak only English while at work or while conducting certain work activities are, and continue to be, relatively controversial. As we discussed previously, linguistic characteristics are closely associated with national origin, and therefore English-only rules can open employers up to national origin discrimination lawsuits.
A recent decision by an administrative law judge, however, held that English-only rules may also violate the National Labor Relations Act (“NLRA”) in certain circumstances. In Valley Health System LLC, JD(SF)-08-15, 2015 WL 1254854 (N.L.R.B. Div. of Judges Mar. 18, 2015), a group of hospitals maintained a work rule in their Employee Handbook which required employees to communicate only in English when conducting business with each other, when patients or customers are present or in close proximity, and while on duty between staff, patients, visitors, and/or customers. The employees contended that the English-only rule was a violation of the NLRA because it inhibited the ability of employees (particularly those for whom English was not their native language) to freely communicate about working conditions and their terms and conditions of employment.
The ALJ agreed. While the hospitals argued that the English-only rule was permissible because it complied with the EEOC’s guidance that English-only rules are permissible if justified by a business necessity, the ALJ held that even if the rule was justified by business necessity (which the ALJ stated it was not), “business necessity” was not the test to be applied for evaluating the rule under the NLRA. Instead, the test was whether the English-only rule “would reasonably tend to chill employees from exercising their Section 7 rights.” In other words, if the employees would reasonably construe the language of the rule to prohibit Section 7 activity, the rule was unlawful.
The ALJ determined that the hospitals’ English-only rule was vague as to when and where employees were required to speak English. Because the rule was unclear and was not sufficiently limited in time and location, the ALJ concluded that “employees, especially non-native English speaking employees, would reasonably believe that they could not engage in concerted activity.” Therefore, the ALJ held, the rule violated Section 8(a)(1) of the NLRA.
While English-only rules have traditionally been analyzed only within the framework of national origin discrimination, this case suggests that employers should now also consider whether their English-only rules violate the NLRA by chilling employees’ ability to engage in concerted activities for the purpose of mutual aid and protection. Notably, this will require a separate inquiry from whether the rule is permissible under the EEOC’s business necessity test.
