English-only rules are not as common as they once were, but many employers still require employees to speak English only in the workplace. Justifications for these rules vary, but the Equal Employment Opportunity Commission has long given such requirements a wary eye. The National Labor Relations Board has now weighed in on the legality of English only rules, and has concluded that an employer’s English only rule violated the National Labor Relations Act.
The employer was a hospital. Among other things, the hospital’s employee handbook required employees to communicate only in English in the work environment when conducting business at the hospital or with each other, and when patients were present. The Board’s Office of General Counsel took the position that the English-only rule was so overbroad that it inhibited non-native English speaking employees from being able to communicate freely about working conditions and/or other terms and conditions of employment.
The hospital countered that its policy was lawful in accordance with guidance provided by the EEOC, which allows English-only rules if justified by business necessity. Such rules will be justified, according to the EEOC, if the rule will allow for safe and efficient operations.
A Board Administrative Law Judge began the analysis by noting that the Board was not bound by the EEOC guidance. The ALJ went on to note that she would follow the Board’s precedent, and essentially ignore the EEOC guidance. Although the ALJ repeated three times that she was not bound by the EEOC’s guidance on English only rules, interestingly the ALJ noted that she did not believe that the hospital had a business necessity which would justify the English only rule.
The ALJ applied the Board’s test for evaluating workplace polices and concluded that employees would reasonably interpret the rule to restrict them from engaging in protected activity under the Act, and as such, the rule was unlawful. The ALJ noted that the rule required employees to speak English not only in patient areas, but also at any time while on duty, between themselves, staff, customers, visitors and in non-patient areas.
The ALJ’s decision to ignore and basically contradict the guidance provided by the EEOC is yet another frustration for employers. We previously discussed the Board’s holding that a rule requiring confidentiality during a workplace investigation contradicted EEOC guidance regarding internal investigations.
This decision is just the latest attack in the Board’s all out assault on employer policies. While this decision was only the decision of an ALJ, we believe that based on the Board’s track record, the decision will likely be upheld. As a result, if you have an English only rule, now would be the time to revisit that need for the rule.