Bilingual employees, solicitation, and office parties

It’s that time again! Every other week, we take the most popular submitted questions from our HR BaseCamp Facebook group and go more in-depth on the answer. Join the over 10,000 other office managers and business owners in the group here to submit your questions and participate in the discussion!

We have a couple of employees who speak Spanish to each other in our otherwise English-speaking office. It’s making others uncomfortable since we don’t know what they are saying. Can I say that they can only speak English unless we need them to speak Spanish for a patient?

The legal side of things: The most important thing to keep in mind with this situation is the EEOC, or the Equal Employment Opportunity Commission. These are the people that enforce federal anti-discrimination laws. When it comes to something like languages, the EEOC looks at policies requiring only English in the office with a lot of scrutiny. Specifically, they find that “rules requiring employees to speak only English in the workplace can violate the law unless the employer can show that they are justified by business necessity.”

In layman’s terms, that means that unless you can prove an English-only policy is required for safety considerations or some other business necessity (such as properly communicating with patients, clients, or customers), then you might want to think about handling this another way. In our human solution, we are going to address how you might address the issue with no policy, at least to start with.

Keep in mind that one reason we want to avoid the policy is that you can not restrict personal conversations between employees that aren’t work-related, during breaks, or other non-work times. You also can not regulate your employee's discussions about their working conditions.

Now imagine that the only way for the two employees to realistically engage in protected activity in a meaningful way is for them to speak in their native language. You can quickly see that a broad English-only policy would run afoul of the NLRA and the laws that the EEOC has established.

The human side of things: We get your question often, and it is accompanied by concerns like “it’s making the other employees uncomfortable because they think the conversation is rude and about them,” “two patients have complained, and a new team member is saying she feels left out,” and other concerns similar to that. As we stated, your first instinct may be to write a policy, issue a memo, or address it in a team meeting. Don’t do that.

Take into account that not only is the EEOC quite critical of English-only policies, but also consider that by creating a policy, you’d be drawing attention to the few people that everyone knows speak Spanish, and that can make your Spanish speakers feel uncomfortable too (like yeah, we had to write this policy because of them!)

Let’s identify what the work-related problems are here and talk about it with the employees.

We are going to use three key points:

When having work-related conversations, please make sure that you are communicating in a language that everyone present, including patients, can understand.

Everyone needs to know what’s going on with the patient, and the patients need to feel comfortable understanding what’s happening around them when they are at your business.

If they’re speaking another language, their coworkers may be missing critical pieces of information - or unable to correct things that are being done wrong. Plus, the patients may feel like they’re being talked about in a negative way.

Talking it out is oftentimes the best bet toward reaching a resolution, so always remember to try that first.

An employee who left us for another job a couple months ago keeps texting our current employees about how great their new employer is and that everyone should quit our practice and work for them instead. Is there anything I can do to stop her from texting my employees about this?

The legal side of things: Legally, in general, there is nothing you can do to stop an ex-employee from texting your current employees. Even if this former employee happened to have been a doctor or a high-level manager (in which case they may have signed a non-solicitation agreement), simply talking about how great their new place of work is most likely is not enough to say they are unlawfully “soliciting” your staff. That said, if they are actively soliciting and you can prove it, this moves out of the context of employment law to civil and contract law.

Policies in your employee handbook would be ineffectual and, in places like California, could rise to the level of a criminal misdemeanor for violating the employee’s civil rights.

The human side of things:Retention is difficult, even without having a crappy-mcbuttface ex-employee trying to steal your current ones. We get it, and it feels personal!

We can share that oftentimes, when an employee or two leave for another place, it’s not the worst thing in the world. If your fear is they are about to gut your entire team, then one of the things you would have already been focused on is having created a workplace that people aren’t so easily tempted to leave. Would you want to work at your business? Sometimes asking yourself this question can enlighten you about some things you’d want to change to make your employees happier.

You already know this, but it bears reminding ourselves that the process of self-examination is a key part of running the HR at your business. Things like competitive pay, a good benefits package, and management that focuses on employee engagement can all really elevate your place of work over the competition. If you know you are doing your best in these areas and someone still leaves, then you’ve done your best and the next step is to try to understand why they left and see if there is anything you might do in the future to reduce the likelihood others will want to leave.

Additionally, keep the conversation open with your employees and be honest on what the strengths and weaknesses within your business and team are. You give them feedback on their performance, so allow them to give it to you, also. What do they like about working for you? What do they think would be a good idea to change? Working together to improve your workplace will go a long way to increasing your retention; we all love to be heard.

Our company party is something our team looks forward to every year, and yes, we offer alcohol at the event. Don’t you know it just took two out-of-control employees who drank too much and danced inappropriately last year to make me consider ruining the fun for everyone and canceling the party this year. Is having a holiday party for my team even worth it? I feel like anything I do these days as an employer is under so much scrutiny!

The legal side of things: A lot of people think that workplace policies or procedures do not apply at holiday parties, but employment laws still apply whether the event is held at work or off-site.

What does this mean for employers? At-will employment still applies (in all states but Montana). You can separate from an employee at any time and for any reason, including a reason related to your holiday party. If an employee gets drunk and acts inappropriately (e.g., suggestive comments or behavior, bad-mouthing colleagues or a boss, or embarrassing the practice or company), an employer can discipline or terminate.

Similarly, if an employee is sexually harassed or discriminated against at a holiday party (e.g., inappropriate conduct on a dance floor or a sideways comment about Hanukkah), and if they report the incident,an employer could be looking at a discrimination or harassment claim.

Finally, if attendance at a holiday party is mandatory, Fair Labor Standards Act (FLSA) rules apply, and employees should be compensated accordingly.

Now for the human approach: Here is what we have noticed as HR advisors: Readers who do not include alcohol at their holiday parties never call in with crazy HR incidents that need to be addressed immediately. So, take that for what it is worth.

We’ve created an entire holiday guide that goes over best practices with holiday parties. You can still have fun while avoiding workplace HR headaches!

As is almost always the case, planning and preparation will help reduce any risks associated with having a holiday party. Remind your employees that group events are an important part of building a strong team, but workplace rules apply even after hours and off-site.

Dec 12, 2023

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance based on applicable local, state and/or federal U.S. employment law that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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