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Mid-Summer Pop Quiz: Cold Beer From The Enforcement Agencies?

June 29, 2015

By Michael G. McClory

Let’s take inventory.  We are just a week away from the mid-Summer classic, vacation season is in full swing, and school is a distant memory.  At the same time, the back to school industry is humming.  And that reminds us that larnin is not too far around the corner

To help insure that we stay in practice, The Bullard Edge is giving you a one-question pop quiz on English-only work rules.  Books closed.  Pencils in hand.  Here we go.
Quiz Question
Mid-Town Explosives, a company that manufactures fireworks for municipal displays, has a linguistically diverse workforce.  Out of concern for safety, Mid-Town adopts a limited English-only rule for workplace communications.  The rule requires employees to communicate only in English while performing job duties in R&D, product testing, and product manufacturing areas; these are all areas where, in the judgment of Mid-Town, there is the danger of fire or explosion (either immediate or at time of product use).  Mid-Town’s rule does not apply to casual conversations between employees in these areas when they are not performing a job duty. 
Question ~ Is Mid-Town’s policy lawful?  (Show your work.)
Explanation For Title
It may be that a few of you out there are wondering about the title.  Before you email The Bullard Edge asking if this is real, let us assure you that it is.  You can get COLD BEER from EEOC, NLRB and DOL.  Just mix the letters in a bowl, as if you were playing a relaxed game of Scrabble
Besides creating a little space between the question and answer, this little bit of nonsense information is also a quiz clue, to wit: perhaps you do not always get the same thing from federal enforcement agencies.  With the same letters you could have gotten a BOLD CONE or been BORN OLD.  Think about it.
Quiz Answer
Yes, but no.  That sounds like lawyer double-talk, but hear me out.
The Mid-Town fact pattern is drawn almost entirely from the EEOC Compliance Manual.  In Section 13: National Origin Discrimination, at Example 20, EEOC states that this “English-only rule does not violate Title VII because it is narrowly tailored to safety requirements.”  EEOC also states that more broadly an English-only rule may be justified as a “business necessity” where “it is needed for an employer to operate safely or efficiently.”  Odds are that EEOC would approve Mid-Town’s policy as a business necessity.
But ~ there is always a but ~ the NLRB may not approve of the Mid-Town policy.  In a recent case the NLRB General Counsel convinced an ALJ that EEOC’s Compliance Manual guidance is “not binding on the Board”.  In Valley Health System LLC et al. v. Kathy Morris and Katrina Alvarez-Hyman, the charging parties challenged a Las Vegas area hospital system’s work rule requiring “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.’”  According to the charging parties, this rule was overbroad and “would reasonably chill employees from engaging in Section 7 activity.”  (Section 7 activity includes the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”)
The hospital system pointed to EEOC’s guidance on English-only rules.  However, the ALJ distinguished it, describing EEOC’s guidance as designed to address national origin discrimination under Title VII.  The ALJ stated that “the Board disfavors adopting precedent from other administrative tribunals unless the Board finds it is materially related to the goals and purposes of the NLRA.”  Instead, the ALJ said Board precedent controlled her analysis.  She found that the English-only work rule adopted by the hospital system “is vague as to time and location (i.e., must use English in patient and non-patient areas, in patient access areas, and between employees, staff, customers, patients and visitors)” and “infringes on an employee’s ability to freely discuss and communicate about work conditions, wages and other terms and conditions of employment.”  For that reason, the ALJ ruled in favor of the charging parties.  (Both sides have filed exceptions to the ALJ decision, which exceptions are currently pending.)
Bottom line ~ Employers need to view any restriction on employee speech or communication through the prism of multiple labor and employment laws AND multiple enforcement agencies.  A policy that might be valid under Title VII or in the eyes of EEOC may not be lawful under the NLRA or in the eyes of the NLRB. 
Note: It is not a lock that EEOC would have approved of the policy disapproved by the ALJ in Valley Health System.  The policy was broad and it is conceivable that EEOC would have found it to have exceeded the bounds of business necessity.
That is enough work for today (although The Bullard Edge is always here for your questions about English-only policies).  Go back to your regularly scheduled summers ~ and cheer on the USWNT in the 2015 Women's World Cup semifinals.  Until next time, best regards.
The Bullard Edge