When setting workplace expectations, proactive employers should recognize the varying levels of literacy and English fluency in today’s workforce, as well as the need for employment information to be accessible to individuals with disabilities. Plain English policies, which are clear to the average reader, are important. But is there a duty to translate key employment documents or information?
Under federal law, there are at least three instances in which an employer may be required to provide notices in a language other than English:
- When an employer is subject to the Family and Medical Leave Act. The FMLA regulations state that where an employer’s workforce has a significant portion of workers who are not literate in English, the employer must provide the FMLA notice in a language in which the employees are literate. In addition, employers giving FMLA notices to sensory-impaired individuals must comply with all applicable requirements under federal or state law.
- When an employer is a federal contractor. Contractors and subcontractors are required to post translations of both the physical and electronic postings where a significant portion of a contractor’s workforce is not proficient in English. Contractors and subcontractors must provide the required notices in the languages the employees speak.
- When an employer has agricultural employees. There is a poster for compliance with the Migrant and Seasonal Agricultural Worker Protection Act, as well as an Employment Rights Under the H-2A Program poster under the Immigration and Nationality Act. Employers of agricultural workers may need to provide posters in any language common to a significant portion of the workers if they are not fluent in English.
In addition, some state and local laws or ordinances may require posters and other employment information to be provided in languages other than English, particularly where the make-up of the workforce is likely to include a substantial number of non-English speaking employees. For example, the Illinois Day and Temporary Labor Services Act requires day and temporary labor agencies to post a notice about the Act, in English or any other language generally understood in the locale of the agency, in their public access areas.
In other instances, while laws may not impose specific requirements, an employer may be at an advantage in preventing and defending claims if it can demonstrate that its employees had notice of workplace policies in their native language. Employers may want posters and policies translated into a language other than English to ensure employees know that accurate time recording is required, that harassment is prohibited, that they must report injuries or incidents of harassment, and that they can report concerns without fear of retaliation.
Fortunately, some federal and state agencies have simplified the process for employers to provide notices that are accessible to employees in a language other than English, or in a format other than standard readable form. Posters and notices oftentimes can be found on agency websites.
For example, the U.S. Department of Labor provides its Fair Labor Standards Act poster in nine languages in addition to English, each of which is easily accessible from the U.S. DOL website. Other key workplace posters are included at the site under the various federal laws that the U.S. DOL enforces, available here.
The U.S. Equal Employment Opportunity Commission provides its “EEO Is The Law” poster in English, Arabic, Chinese and Spanish. The EEOC also points out that the Americans with Disabilities Act requires that notices be made available in a location that is accessible to applicants and employees with disabilities that limit mobility and that printed notices should also be made available in an accessible format to individuals with disabilities that limit their ability to see or read. Notices can be provided in audio recordings or in a format that can be used with screen-reading technology. Employers also can read to applicants or employees who have disabilities that limit seeing or reading ability. The EEO poster and other EEOC publications, translated into several languages, are available here: Poster and Publications.
For state and local laws, employers can check applicable department of labor or human rights agency websites. In Illinois, for example, the state’s Department of Labor provides a detailed list of poster and notice requirements with links to posters and publications in languages other than English.