If Tea Partiers were not already unhappy with the Obama National Labor Relations Board, they will be if the Board adopts the March 18, 2015 recommended decision of Administrative Law Judge Liza Thompson.  sam

The EEOC, which administers Title VII’s prohibition against discrimination on the basis of national origin, has long had regulations which look askance at workplace English-only rules.  According to the EEOC, such rules are an unlawful form of national origin discrimination unless the particular employer can show that requiring that only English be spoken at certain times or in certain locations is justified by a business necessity.  Examples of lawful business necessities include where a common language must be spoken to promote safety, to promote cooperation in work assignments, or to enable an English-only speaking supervisor to monitor performance.

In what is a case of first impression under the 80 year old National Labor Relations Act, ALJ Thompson has found that a rule requiring all employees to speak only English when conducting business with each other, when customers are present or in close proximity, or while on duty between co-workers or customers, unless interpretation is requested or required, interferes with employees in the exercise of their right to engage in, or refrain from engaging in, concerted activity.

Her rationale is two-fold.  First, ALJ Thompson reasoned that concerted activity is based on the ability of employees to effectively communicate with each other about their terms and conditions of employment. Second, she analyzed English-only requirements to recent Board decisions finding broad, vague, general work rules that don’t contain clear examples of forbidden conduct and which can be subject to various interpretations by employees to be violative of employees’ rights to engage in concerted activity. Thus, she found that an English-only rule, which is not sufficiently limited in time and location, to cause employees, especially non-native, English speaking employees, to believe that they could not engage in concerted activity.

In light of the recent trend in decisions from the Board, finding traditional work place rules unlawful because their broad wording may give rise to a possible contorted interpretation by employees as implicating concerted activities, one also would expect broadly-worded English-only rules, when reviewed by the Board, to suffer the same fate.  This decision, therefore, adds another topic to the growing list of items which an employer must review to ensure compliance with the Obama Board’s continually evolving workplace standards before taking what previously would have been lawful disciplinary action against an employee.

Allison Williams focuses her practice in the area of labor and employment law, litigation, and higher education law. Ms. Williams' practice includes cases pending in state and federal courts, as well as actions pending before the West Virginia Public Employees Grievance Board, the West Virginia Human Rights Commission, and the Equal Employment Opportunity Commission.
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