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Interpreting the Future of the English-Only Workplace

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California law has come a long way in protecting immigrants from employment discrimination in the workplace. As part of this evolving legal landscape, the California Fair Employment and Housing Council recently published new regulations expanding what employment practices are legal as they relate to an employee’s national origin.[1]

These new regulations also clarified the answer to a common employment question: can an employer require its employees to speak English, and only English? The answer is probably not.

Previously, the law held that English-only policies are generally prohibited unless there is a “business necessity” justifying the rule. Now, the Code expands this rule, specifying that English-only policies are presumed unlawful, unless:

  1. the language restriction is justified by a business necessity; and
  2. the language restriction is narrowly tailored; and
  3. the employer has effectively notified its employees of the circumstances and time that the language restriction is required to be followed, and the consequences for violating the language restriction.

Examining the first requirement above, for a policy to be justified as a “business necessity” it must have been implemented for a legitimate reason necessary to the safe and efficient operation of the business and no alternative practice could accomplish that business purpose.

While the new regulations certainly make English-only policies much harder to adopt, they may be more realistic, in practice, when the work involves potential risks to individual safety or property. For example, on a worksite where employees are operating heavy machinery, it might be lawful to require English-only communication between those employees operating the equipment and the employees giving them direction on where and how to maneuver the equipment. An employer could argue in that situation that clear and precise communication between the employee on the machine and the employee on the ground is essential to the employees’ safety, as well as the efficient operation of the machines. On the other hand, the policy could be unlawful if there are alternative ways to communicate, such as through hand or other physical gestures. The lawfulness of an English-only policy will require a very fact-specific inquiry, conducted on a case-by-case basis.

Additionally, the new regulations impose limitations on other employment practices or policies, including those that[2]

  1. discriminate based upon an applicant’s or employee’s accent;
  2. discriminate based upon an applicant’s or employee’s English proficiency – however, it is not unlawful for an employer to ask an applicant or employee about his or her ability to speak, read, write, or understand any language if justified by a business necessity;
  3. impose certain height or weight requirements on an employee; and
  4. allow for retaliation against an employee who opposes national origin discrimination or harassment.

What does this mean for your company? First, make sure to review all of your policies and practices to ensure that they are in compliance with these recent changes. If your company has an English-only policy, be sure that there is a clear business necessity for that policy, and make sure that the policy is drafted in a way that is narrowly tailored to achieve its ultimate purpose.

 

 

Author: Kymberly LeGolvan, Associate.

The Maier Law Group helps companies ensure that their policies and practices comply with the relevant workplace regulations.  Please contact us at info@maierlawgroup.com for more information.

This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly.

 

 

[1] Under federal law, an English-only policy is presumed unlawful. If the policy only applies at certain times, it might be lawful under very limited circumstances when it is narrowly tailored to address a business necessity.

[2] Please refer to 2 CCR § 11028 to read the Regulation in its entirety.