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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

*At this time, we are only conducting phone consultations, please no walk-ins.

Can I be terminated for speaking Spanish at work?

There is very little California-specific authority on the subject. However, California courts routinely look to Equal Employment Opportunity Commission guidelines in deciding this issue. The guidance we do have in California comes from Government Code 12951, which requires a showing of “business necessity” to justify an English-only policy.  Further, the employer must notify its employees of the circumstances and times when this English only restriction is in place. “Business necessity” is defined as an overriding legitimate business purpose…necessary to the safe and efficient operation of the business…and there is no alternative to the language restriction…”

An employer might have one or two different policies.  The one more likely to pass legal muster is a policy requiring English only during specific times of the day or situations, such as one involving worker safety.  The highly suspect (and considered per se illegal under EEOC guidelines, 29 C.F.R. Section 1606.7(a) is a policy that requires all talk during working hours, including meals and break, be in English.

Harkening back to the EEOC guidelines, 29 C.F.R. Section 1606.1, the definition of national origin discrimination includes situations where there is a “denial of (an employee’s) equal employment opportunities” because of ….cultural or linguistic characteristics of a national origin group.”

Here’s some questions to ask if you’ve been treated adversely as a result of an English only policy:

  1. Was I informed of the policy? (and in which language was I told?).
  2. Is my employer’s policy narrowly written to cover only specific situations where English only is very important, such as emergencies, conversations with coworkers, supervisors or customers who don’t speak any language except English?
  3. Is an English-only rule likely to carry out the policy reasons the employer implemented the rule?
  4. How difficult is it for workers to speak only English? If they have a high proficiency then this rule isn’t that much of a hardship.

Interesting side note: Some employers continue to insist that workers do not speak Spanish or any other language besides English in order to prevent them from making discriminatory or insubordinate comments. Not only would such a justification probably fail as prohibiting workplace discussions under National Labor Relations Act guidelines (Section 7), but it would invade the private time of workers, such as meal and rest breaks.  This justification was held inadequate in Gutierrez vs. Municipal Court, 838 F2d 1031 at 1042 (9th Cir 1988).

We look forward to your calls (Spanish is fine, Kathy and Astrid are bilinqual!) to discuss how this policy at your workplace may be affecting you. Let us know if you’ve been warned, suspended or even terminated. If so, you may well be a whistle blower (which knows no language and is an active of courage in any language!) who can sue for wrongful termination.

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Adios, Steve 877 789 9707.