The latest office fodder for me and my colleague, Jason Usher (who formerly worked at the National Labor Relations Board (“Board”)), involves an Administrative Law Judge’s (“ALJ”) decision, Valley Health System LLC, that found that a healthcare employer’s English-only rule violated the National Labor Relations Act (“Act”).
Many employers, especially those in the healthcare industry, institute English-only rules for the workplace to ensure the safety and efficient operations of the facility. The Equal Employment Opportunity Commission (“EEOC”) has issued guidance on the subject, permitting such rules provided that the rule is not overly broad and is justified by a “business necessity.” According to the EEOC, the following justify business necessity:
- In communications with customers, co-workers, or supervisors who only speak English;
- In emergencies or other situations in which workers must speak a common language to promote safety;
- For cooperative work assignments in which the English-only rule is needed to promote efficiency; and
- To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers.
Up until now, however, the Board has not weighed in on English-only policies. This issue was presented before a Board ALJ for the first time in the Valley Health System case. The hospital’s rule required all employees to speak and 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 . . . unless interpretation or translation is requested or required.” The employer’s rule was compliant with the EEOC’s guidance. Indeed, the rule allowed employees to speak their native language during their own time (before and after their work schedules and on breaks and lunch).
In her decision, however, the ALJ found that the rule violated employees’ rights under Section 7 of the Act to engage in protected “concerted activities,” which includes the ability to discuss and communicate about wages, hours, and other terms and conditions of employment. The ALJ determined that the policy was not sufficiently limited in time and location, and as such, found that employees, especially non-native English speaking employees would reasonably believe that they could not engage in concerted activity.
Understandably, the employer pointed to the EEOC’s guidance in its defense. The ALJ stated, however, that the EEOC guidance is not binding on the Board (WHAT?!!! They’re both part of the same federal government!), and that the Board disfavors adopting precedent from other administrative agencies (?!!) unless the Board finds it is materially related to the goals and purposes of the Act. Instead, the ALJ based her ruling upon prior Board precedent that analyzed the lawfulness of a workplace rule by looking at whether it would reasonably tend to chill employees from exercising their Section 7 rights. The ALJ found that the English-only rule was vague with respect to time and location, because it required employees to speak only English while on duty and beyond patient care areas, and she also found that it would infringe on an employee’s ability to freely discuss and communicate about working conditions. The ALJ failed to see how patient care would be disrupted if employees were permitted to speak other languages in non-patient care areas and with other employees, staff, visitors, and customers, particularly if non-native English-speaking employees wish to talk about working conditions.
This decision may lead to consternation among employers, including those not in the healthcare field, as their current English-only rule, which may be lawful according to EEOC guidelines, may not be lawful under the Act. The good news though is that the ALJ decision is not binding legal precedent unless it has been adopted by the Board on review of exceptions. The hospitals involved will likely file exceptions, and we’ll have to wait to see what the (admittedly liberal Obama) Board will do.
Take Away: While the ALJ’s decision is not the law of the land, an employer may wish to review its current English-only work rules to ensure that they are narrowly tailored with respect to time and location to prevent potential unfair labor practice charges and costly litigation.