Si usted no puede leer esta frase, pero sus empleados si pueden, usted debe considerar traducir sus políticas de empleo a español. (If you can not read this, but your employees can, you should consider translating your employment policies into Spanish.)
Prudent employers are now transcribing English employment policies into Spanish and other foreign languages. This is why you should, too. The Texas Supreme Court has held that English employment practice policies may not be worth the paper they are written on if the employee can not read English. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386 (Tex. 2005).
In Texas, employers have been given several “outs” with regard to terminating employees on leave for an injury on the job. These “outs” include reasonable absence control policies. One form of an absence control policy is a policy stating that an employee will be terminated from employment in the event that he/she has not returned to work within one year. Another type of absence control policy states that an employee will be terminated in the event he/she fails to report to work for a minimum number of days (such as five) without contacting a supervisor or other company officer. Texas courts have reasoned that these types of policies provide a legitimate, non-discriminatory reason for an injured employee’s termination from employment provided they are uniformly applied.
An employee must have reasonable notice of the policy, which may entail translating it to a foreign language. The Texas Supreme Court examined the importance of foreign language policies. In Haggar Clothing Company, Altagracia Hernandez sued her former employer, Haggar Clothing Company, alleging that she was fired in retaliation for filing a worker’s compensation claim after she was injured on the job. The jury granted Ms. Hernandez over $1.6 million in damages.
Ms. Hernandez worked as a seamstress at Haggar’s plant and was injured at work. She left for worker’s compensation leave in February 1991, and hired an attorney in August 1991. On February 26, 1992, Haggar sent Ms. Hernandez a letter informing her that her employment with Haggar was being terminated because she had not returned to work after one year. The letter was written in English.
Ms. Hernandez did not speak or read English. Although she took the letter to her attorney, she did not protest the decision.
Haggar Clothing Company had a leave of absence policy which stated that an employee would be ter-minated from employment after one year of leave regardless of the reason. The policy was distributed in both English and Spanish. Ms. Hernandez claimed that Haggar never informed her of the policy. Nonetheless, Haggar had in its possession a Spanish written document, signed by Ms. Hernandez, stating that she had received the employee handbook that contained the policy.
The Texas Supreme Court stripped Ms. Hernandez of her $1.6 million victory because she had signed a uniformly enforced, reasonable absence control provision. Although the court heard evidence of other alleged circumstantial evidence of retaliation by Haggar, the court felt that it was “immaterial” given the fact that Ms. Hernandez had signed the Spanish written absence control policy.
What Other Policies Should Be Translated?
The decision to take away Ms. Hernandez’s $1.6 million judgment because she signed an absence control policy written in Spanish begs the question: What other policies should a company consider translating into languages that reflect the diversity of their employees? Companies should probably consider translating policies that are required by federal and state statutes as well as policies that are helpful in providing defenses against retaliation discrimination and harassment claims.
These policies include, but are not limited to:
- Harassment policies
- Family and Medical Leave Act policies
- Employment-at-will policies and statements
- Fair Credit Reporting Act authorizations
- Wage deduction authorizations
- Drug and alcohol policies
- Safety policies
Many companies and law firms offer translating services for employment policies. One word of caution, however: Do not let the meaning of the policy get lost in the translation. Retain a firm or company that can maintain the integrity of the policy during the translation. Finally, ensure that employees acknowledge receipt of such policies (in Spanish).