In our last blog, we discussed a recent court decision that found an employer’s anti-harassment workplace policy was “defective or dysfunctional” because a Spanish-speaking foreman (aka, a supervisor) could not read or understand it. This decision begs the question: “does this even apply to me/my company?” Because most workplaces do have employees with English-language challenges, it’s important to consider how to engage your multilingual workforce while at the same time managing risk.
Especially in very large environments, employers truly may not realize the breadth of the ethnic diversity in their own workforce. But let’s test that assumption with a quick quiz:
- Is your company located in the United States?
- Does your company employ 15 or more workers?
- Do you have employees in any of these categories?
- Protective Service
- Community and social service
- Education, training, and library
- Office and administrative support
- Business operations specialists
- Extraction workers (e.g., miners)
- Arts, design, entertainment, sports, or media
- Installation, maintenance, repair
- Financial specialists
- Healthcare practitioners and technicians
- Transportation and material moving
- Healthcare support
- Personal care and service
- Life, physical, and social sciences
- Food preparation and serving
- Computer and mathematical
- Building, grounds cleaning, and maintenance
- Farming, fishing, and forestry
If you answered “yes” to the above questions (and, really, how could you not answer yes to the third one?), then statistically, you almost certainly employ one or more immigrants.
Many Immigrants Have English Challenges
While many immigrants do speak, read, and write English, a high percentage do not … even after being in the U.S. for many years:
- 67% of immigrants in the U.S. for 15+ years don’t speak more than basic English.
- 32% of naturalized U.S. citizens fall below “basic” skills in English. 
Further, even immigrants who speak English may not be able to read and write English:
- 41% of immigrants score at or below the lowest level of English literacy (i.e., below basic literacy).
- Of Hispanic immigrants who speak English well or very well, 44% fall below the basic level of reading/writing literacy. 
In fact, the foreman at issue in the Tinoco decision could speak English … he just couldn’t read it.
In the end, it’s likely that one or more employees in most workplaces either can’t communicate in English at all or can’t read English. In such situations, the Tinoco decision strongly suggests that employers translate sexual harassment policies and procedures. Further, as our previous blog discussed, other forms of language access assistance might be necessary to prevent, investigate, and correct sexual harassment.
But what about all the other important workplace policies and procedures? One can easily imagine other situations where an employee not understanding workplace policies or procedures could have legal implications.
In most states, employees who are terminated for “just cause” are not entitled to unemployment. But proving “just cause” frequently requires evidence that the employee was put on notice that violating a work rule might result in termination. This is usually a simple matter of showing an employee handbook and signed acknowledgment page. But how would it play out if the employee said, “Yes. I got the policy. But it was in English and I can only read Somali.”?
Workers compensation and/or OSHA matters
What happens when an employer knows that some of its workers can’t read English, but only posts safety warnings and/or procedures in English … and then a workplace accident occurs? Workplace accidents raise both occupational safety and health issues and workers’ comp claims.
Beyond sexual harassment, employers must protect employees from harassment and discrimination based on a variety of protected classes, such as race, ethnicity, religion, and disability. Likewise, employers must protect employees from retaliation if/when they complain about harassment or discrimination. How can an employer show strong, effective policies against harassment, discrimination, and retaliation in the workplace, if supervisors and/or workers can’t read them? Similarly, how can employees complain if the processes are written in a language they can’t read?
Protected Leaves of Absence
Employees may be entitled to job-protected leave under several federal and state statutes. For example, most full-time employees are entitled to up to 12 weeks of protected, unpaid leave under the Family and Medical Leave Act. The various types of protected leave frequently come with policy and process requirements for the employer, sometimes with very specific timing. What happens when a Limited English Proficient employee is terminated for absenteeism, and then argues he/she didn’t know how to ask for FMLA leave or a reasonable accommodation for a disability because the policies and procedures were only available in English?
Engaging Your Multilingual Workforce and Managing Risk
Employers have several options when it comes to engaging their multilingual workforce that both ensure employee understanding and help manage risk:
- Document translation: Translate important employee policies and processes, workplace postings, forms, and the like.
- Video translation: Use subtitles, captions, and/or voiceover for video training courses on important topics like safety, harassment and discrimination, and privacy and confidentiality.
- Video and/or phone interpreting: Provide instant access to an interpreter via video or phone 24/7/365 to empower LEP employees to ask questions, raise concerns, and/or participate in investigations.
- Onsite interpreting: Bring an interpreter on-site for lengthier, more complex conversations at the complaint, investigation, and/or resolution stage -or- to allow LEP employees to participate in live training courses.
- Website localization: Many employers – especially large companies – offer reporting mechanisms via online reporting. Localizing your company’s intranet allows LEP employees the opportunity to report concerns online.
Vocalink Global’s TheInsideOut solution incorporates the above options and more to help employers build an active and engaged multilingual workforce, while at the same time managing and minimizing risk. Want to learn more? Connect with us today!
 Based on figures from an indeed.com survey described here: http://blog.indeed.com/2017/01/19/how-jobs-immigrants-do-are-changing/
 See “5 million immigrants granted US citizenship can’t speak English,” Paul Bedard, The Washington Examiner, July 12, 2017, available online here: https://www.washingtonexaminer.com/5-million-immigrants-granted-us-citizenship-cant-speak-english
 See “Immigrant Literacy: Self-Assessment vs. Reality,” Jason Richwine, Center for Immigration Studies, June 21, 2017, available online here: https://cis.org/Immigrant-Literacy-Self-Assessment-vs-Reality