

Sunday, July 1, 2007 - 01:00

The diversification of the American workforce requires many employers to determine whether they have an obligation to ensure that their communications to employees are understood. Understood, in this context, may mean that the communication should be in a language other than English or even Spanish. According to the Equal Employment Opportunity Commission, "in the year 2000, approximately 45 million Americans (17.5 percent of the population) spoke a language other than English in the home. Of those individuals, approximately 10.3 million individuals (4.1 percent of the total population) spoke little or no English, an increase from 6.7 million in the year 1990."1 The EEOC has made it abundantly clear that English-only rules are strongly disfavored in absence of a legitimate business need.2 Less clear is whether an employer has an affirmative obligation to communicate to its employees in a language other than English and, if such an obligation exists, when it attaches. Answering these questions requires employers to navigate a sea of statutes, regulations and decisional law. Most of all, it requires a healthy dose of common sense.

When determining their responsibilities concerning communicating rights to employees who speak languages other than English, employers' first line of inquiry should be into employment-related laws themselves, including laws that may govern health or retirement benefit plans sponsored by employers. The overt or implied premise of these laws is that employers have a duty to communicate certain information to their employees. Yet, many laws (and the attendant regulations) that require the posting or distribution of notices do not clearly delineate employers' obligations concerning employees for whom English is neither a comfortable nor effective method of communication. Thus, employers are left to rely on decisional law and common sense. A sampling of federal, state and local laws demonstrates the range of posting and notice distribution requirements - from vague to precise - and how common sense is often the most reliable guide in responding to imprecise directives.

I. Less Than Clear? Look To Common Sense

A. Federal Law Examples

The regulations to the federal Family and Medical Leave Act ("FMLA"), for instance, provide a vague mandate to employers regarding notification to employees of FMLA rights. 29 C.F.R. 825.300(c) states, "Where an employer's workforce is comprised of a significant portion of workers who are not literate in English, the employer shall be responsible for providing the notice [explaining the FMLA and procedures for filing complaints] in a language in which the employees are literate." The regulation fails to explain what constitutes a "significant portion of workers who are not literate in English." Compounding (and confounding) the issue, the federal agency charged with the enforcement of the FMLA (the Wage and Hour Division of the Department of Labor) only provides notices in English and Spanish. Must employers have notices translated into languages spoken by an undefined "significant portion" of their workforces illiterate in both English and Spanish?

The FMLA exemplifies the typical path of analysis - begin with the law, look for any guidance available and rely on common sense. The FMLA regulations do not provide an entirely clear mandate. Case law, at the time of this article, provides no guidance. So employers are left with a common sense approach. The safest course? If an employer is aware that its workers speak a language other than English or Spanish, pay the cost of having the FMLA notice translated. A minor cost up front may provide greater savings in the face of an employee FMLA claim.

Likewise, in the employee benefits area, employers that sponsor group health plans should examine potential obligations to provide required notices and materials in a foreign language under federal law. Two of the most far-reaching federal benefit laws are the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") and the Employee Retirement Income Security Act of 1974 ("ERISA").

COBRA requires most employers with 20 or more employees that provide group health coverage to permit covered individuals who lose plan coverage due to certain events to elect to continue plan coverage on a self-paid basis. The 2004 COBRA regulations require that the employer provide covered individuals with certain written notices regarding their COBRA coverage continuation rights. 29 C.F.R. 2590.606-1(c) and 2590.606-4(b)(4) require that these notices be "written in a manner calculated to be understood by the average plan participant." The courts have been silent regarding whether this statement requires an employer to provide COBRA notices in a foreign language where the "average participant" may speak a first language other than English. Nonetheless, courts both before and after the issuance of the 2004 COBRA regulations require an employer to make a "good faith effort" to comply with the notice requirements. In one instance where an employer knew that a notice recipient spoke a foreign language, a court did not go so far as to suggest that the "good faith effort" standard requires provision of COBRA notices in a foreign language. The court found instead that a plan administrator complied with the COBRA notice requirements by providing a Spanish-speaking individual with a notice in English because COBRA does not expressly require that COBRA notices be translated into a foreign language where the covered individual does not speak English.

The lack of a legal mandate to provide COBRA notices in a foreign language, however, certainly does not preclude an employer from providing COBRA notices in English and in a foreign language where an employer knows that a large percentage of its workforce speaks a foreign language. Indeed, if an employer knows that the "average participant" in its group health plan speaks a foreign language, distributing notices in English and the foreign language comports with common sense. Nonetheless, an employer should proceed with caution in trying to meet the linguistic needs of employees on a case- by-case basis. Attempts to do so currently are not required, and moreover, may prove administratively unwieldy for the employer that has a population that speaks many different foreign languages.

The COBRA inquiry, however, does not end an employer's potential obligation to provide benefits materials in foreign languages. An employer that is also the plan administrator for a group health or retirement plan covered by ERISA may have a specific obligation (in its role as plan administrator) to provide a notice of foreign language assistance in certain instances. Department of Labor ("DOL") Regulations 29 C.F.R. 2520.102-2(c) and 29 C.F.R. 2520.104b-10(e) require that a Summary Plan Description ("SPD") and an Annual Report Summary contain a notice of foreign language assistance in a foreign language where a certain percentage or number of participants are literate only in this same foreign language. A plan must provide such a notice in these materials in this foreign language (for a plan that covers fewer than 100 participants at the beginning of a plan year) where 25% or more of all plan participants are literate only in this language. A plan that covers 100 or more participants must provide such a notice where the lesser of at least 500 participants or 10% or more of participants are literate only in this language.

B. State Law Examples

State laws may also provide guidelines for notifying employees of their rights in languages other than English. Too often, though, state laws also leave room for interpretation. For example, the New Jersey Conscientious Employee Protection Act ("CEPA"), which protects whistle-blowers, states that notices of CEPA rights "shall be in English, Spanish, and at the employer's discretion, any other language spoken by the majority of the employer's employees." N.J.S.A. 34:19-7. Seems clear enough. Yet notice is to be provided in other languages spoken by the majority of employees "at the employer's discretion." It is unclear exactly how much discretion an employer may have. The statute does indicate, however, that the Commissioner of Labor and Workforce Development (the "Commissioner") shall provide printed notices in languages other than English and Spanish at an employer's request. Given the small burden on employers considering the Commissioner's duty to provide notice translations and with an eye to best practices and employee relations, employers covered by CEPA should take affirmative steps to obtain translated notices of employee rights. Similar specific obligations may exist under other state laws.

Employers should also note that state law could create an obligation to provide health benefit notices in a foreign language; however, such state laws typically apply to health insurers and not directly to employers because state laws regulating private employer-sponsored health and retirement plans are generally preempted by ERISA. Nonetheless, employers would be well advised to consult with legal counsel regarding specific laws in the states in which they operate to ensure compliance.

II. Loud And Clear, But Is It On Your Radar?

Investigation into non-English notification requirements cannot stop at the federal and state level. Often, local law provides additional posting obligations. For example, unlike the FMLA or CEPA, a local San Francisco ordinance mandates precise notification requirements regarding the accrual of sick leave. San Francisco's Municipal Code, Chapter 12W.5, requires employers to post notice of sick leave rights "in English, Spanish, Chinese, and any language spoken by at least 5% of the employees at the workplace or job site." The ordinance eliminates a significant burden on employers by requiring the Office of Labor Standards Enforcement to provide notices suitable for posting in all languages spoken by more than 5% of the San Francisco workforce. While the San Francisco sick leave ordinance typifies a law that places clear posting requirements on employers, local laws are often overlooked, rendering employers in violation of their notification duties.

III. Lesson Learned? Investigate Your Responsibilities

With immigration at the forefront of political debate and as a current social reality, employers need to be aware of, and prepared for, issues that arise in an increasingly multicultural and multilingual workplace. As this brief examination of just a few laws illustrates, this may not be a simple task because employment-related laws can be unclear regarding non-English notice obligations. Yet in the scope of responsibilities involving the employment of foreign nationals, non-English speaking citizens or non-English speaking lawful permanent residents, investigating and making reasonable efforts to comply with non-English notification requirements of employment-related laws is one of the more manageable steps employers can take to integrate their workforces and demonstrate their commitment to embrace diversity.

1 EEOC Compliance Manual, Section 13-V "Language Issues", National Origin Discrimination, December 2, 2002, available at www.eeoc.gov/policy/docs/national-origin.html#N_42_, last visited March 28, 2007 (citations omitted).

2 Id. at Section 13-V(C).

Amanda E. Layton is an Associate in the Employee Benefits Practice Group of WolfBlock. Her practice includes drafting and navigating employee benefit plans as well as counseling employers on general benefits matters. Lauren M. Mazur is an Associate in the group as well. Her practice includes providing counseling and training to employers on a host of workplace issues, drafting employment-related agreements and policies and representing clients in administrative proceedings.

Please email the authors at alayton@wolfblock.com or lmazur@wolfblock.com with questions about this article.