Tristan & Cervantes

Long recognized as an industrial powerhouse, Illinois' manufacturing sector provides over 894,000 jobs, of which, thousands are filled by Hispanic workers. The latest census figures show Illinois is home to more than 1.5 million Hispanics, comprising over 12 percent of the state's overall population. Indeed, the number of Hispanics in the Midwest grew by 81 percent between 1990 and 2000, making it the fastest growing Hispanic population of any region in the country.

The influx of Hispanic workers to the region has been a boon for Illinois manufacturers. Hispanics represent a growing proportion of the labor pool, with employers increasingly recruiting and hiring from this important group of workers. The surging number of Hispanic workers presents unique issues for employers. This article highlights three challenges commonly faced by employers of Hispanic workers: English-only rules; effective communication of company policies; and union-organizing efforts.

Can you require your employees to use English only?

One of the most common concerns in a bilingual workplace is whether employers can require their employees to use "English only" while at work. Such policies have been the subject of growing controversy in recent years. In fact, complaints with the Equal Employment Opportunity Commission (EEOC) against employers requiring their workers to use English only grew from 91 complaints in 1996 to 443 complaints in 2000. Cases involving restrictive-language policies, including English-only, are litigation priorities for the EEOC. The EEOC distinguishes between two basic types of English-only policies: those that require workers to use English all of the time and those that require its use only at certain times and in certain places.

Employers requiring their employees to use English at all times in the workplace, including lunch and breaks, risk close EEOC scrutiny. The EEOC assumes such a policy discriminates against employees on the basis of their national origin. The EEOC has successfully pursued claims against employers implementing such policies. In April 2001, a private university in San Antonio paid $2.5 million to settle a claim with the EEOC involving a rule which required employees to speak English at all times. Illinois has not been immune to similar claims. In September 2000, an Illinois manufacturing company agreed to pay nearly $200,000 to eight Hispanic employees who were terminated for violating the company's policy requiring them to speak English at all times.

A common reason advanced by employers for implementing an English-only policy is that the employees' use of Spanish causes conflict among employees, and that the use of English promotes harmony. In EEOC v. Premier Operator Services, Inc., the court found that this pursuit of workplace harmony was not a valid business reason. The court further stated that the English-only policy actually disrupted the workplace because it created a feeling of alienation and inadequacy for Hispanic employees, and resulted in loss of productivity when Hispanic employees were disciplined for violations of the policy.

On the other hand, the EEOC recognizes that employers may have a legitimate business need to require employees to speak English at certain times, and employers have some leeway when implementing such policies. However, the EEOC requires the employer to demonstrate the rule is justified by a business necessity. The EEOC also warns that before implementing the policy, the employer must inform its employees (1) how the policy will be applied and (2) the consequences for violating the policy.

The employer is required to do more than just say the use of English-only at specified times and places is necessary. The employer must demonstrate why it is necessary for its employees to speak only English on these occasions. Examples of valid business reasons include when employees have to communicate with English-speaking customers and when the employees must communicate with a supervisor who only speaks English.

Accordingly, if an employer is considering implementing an English-only policy, it should carefully review the business necessity of the policy. If the rule is deemed necessary, the employer must inform its employees of the time, place and other conditions to which the policy applies and what discipline will be imposed for violating the rule. Imposing discipline without first informing employees of the policy may be challenged by the EEOC.

Are your employment policies communicated effectively?

Employers with a monolingual Spanish-speaking workforce should have their employment policies translated into Spanish. In employment disputes, employers often point to their policies as a defense to liability. Employment policies are especially critical in claims alleging harassment. In 1998, the Supreme Court held that under certain circumstances an employer can avoid liability for harassment by supervisors or coworkers if it can demonstrate it had a reasonable mechanism for detecting and correcting harassment, and the employee unreasonably failed to take advantage of such mechanisms to avoid harm. As a result of this decision, most employers have realized that implementing a comprehensive anti-harassment policy is a good method of establishing that they have taken reasonable steps to prevent harassment. An employer would be hard-pressed to argue a policy is a reasonable mechanism for detecting and correcting harassment if the employees it seeks to protect cannot understand it. It would be equally difficult to argue an employee acted unreasonably by not reporting harassment when he or she was not able to read or understand the policy

An effective anti-harassment policy must also provide multiple avenues for an aggrieved employee to complain. For instance, a policy may provide an employee with the option to complain to his/her direct supervisor, a higher supervisor, and someone outside the employee's chain of command, such as a human resources staff member. By providing multiple avenues for reporting harassment, the employer avoids placing the employee in the predicament of having to report the harassment to the alleged harasser (or someone in the alleged harasser's chain of command) and risking possible repercussions. Employers should ensure that Spanish-speaking employees also have the opportunity to report harassment outside of their chain of command by providing at least one Spanish-speaking employee to handle harassment complaints. Alternatively, employers should identify employees who can assist with translating complaints.

Are you prepared to respond to a union-organizing drive aimed at your Spanish-speaking employees?

Unions have caught on to what employers have long recognized: Recruiting Hispanic workers makes sense. Unions' declining membership, currently about 9 percent of the private workforce, has awakened union leadership and has energized it to increase organizing efforts. Today, unions are eager to organize groups they traditionally ignored in the past - including Hispanics. In 1986, the AFL-CIO strongly lobbied Congress to stem the tide of immigration into this country by opposing the amnesty granted to millions of undocumented workers. Recently, however, the AFL-CIO actively lobbied in favor of relaxed immigration laws and even supported new amnesty measures. Unions hope this new "friendship" with Hispanic workers will help increase their ranks and prevent their own extinction. As a result, Hispanic workers are increasingly the targets of union organizing. Since 1990, Hispanics have joined unions in record numbers. In the last 10 years, Hispanic membership in unions surged by over 25 percent.

In the past, unions reacted slowly to the large number of potential Hispanic members and failed to capitalize on the largely unorganized Spanish-speaking workforce. Playing catch-up now, unions are quickly learning that they are often faced with a barrier: "no hablo español."

In response, unions are hiring more Spanish-speaking organizers and are addressing issues unique to Hispanic employees, such as concerns regarding undocumented-worker status, unequal treatment, and leave policies. Unions realize communicating a properly tailored message to Hispanic workers may result in successful organizing drives. Unions communicate their message to Hispanic employees by selling them - in Spanish - on why a union could benefit them.

Effective communication is an employers' single-most important weapon in countering any union organizing campaign. A union campaign targeted at a Hispanic workforce is no exception. Employers must counter the union's message with their own (within the framework of the National Labor Relations Act). The message must be tailored to address the issues present in the workforce and must be understandable. More importantly, employers must regularly communicate with their employees to avoid creating a communications void that can be filled by a union.

When faced with a union-organizing campaign targeted at a largely Hispanic workforce, employers should be prepared to address employees in a voice they understand. If a large portion of the workforce only speaks Spanish, the ability of management to communicate in Spanish is critical. One of the mistakes most often committed by employers is failing to communicate with its employees effectively until they are in the midst of an organizing campaign. At that point, it may already be too late.

Recognizing and properly addressing the concerns of your workforce - regardless of its make-up - will lead to enhanced productivity and positive employee relations, thereby minimizing the risk of union organizing and employment-related litigation. Employers must understand the unique issues presented by a workforce that includes Hispanics. Through effective communication and sound employment practices, employers and employees alike can enjoy the benefits of a diverse and productive workforce.

The above article appeared in the March/April 2002, The Illinois Manufacturer. The article was co-authored by Homero Tristan of TGC Partners.