Counsel to Counsel - May 2008 - (Page 11)

POrTEr & HEDGES LLP Crafting an English-Only workplace Policy While an English-only rule can and should raise discrimination concerns, federal law does allow employers to implement such policies when they are narrowly tailored to address a specific business necessity, such as a company’s safety or customer service requirement. situation implementation steps • Meet with management and Human Resources to establish the business necessity that requires an English-only rule. • Craft a policy that outlines when and where the rule does/does not apply. • Explain the rule to management, which will be responsible for enforcing it. • Meet with employees and explain the new rule and the rationale behind it. Focus heavily on the business necessity. • Have HR monitor compliance. • Re-evaluate the rule annually. It is inside counsel’s responsibility to work with Human Resources (HR) and management to craft and execute an English-only policy that addresses compelling business circumstances specific to the company without disrupting the workplace and unnecessarily infringing on the individual rights of its employees. challenge in-house counsel Meet with HR and management to review the workplace situation that justifies an English-only rule to determine whether such a rule is likely to withstand claims of discrimination (disparate impact on ethnic/national origin minority employees). The U.S. Equal Employment Opportunity Commission, for example, allows companies to establish English-only rules for: approach adopted A focused English-only rule will result in managers who fully understand the policy and apply it correctly and consistently. That, in turn, will result in a positive, more efficient workplace because employees understand the rule, including when it applies and when it does not, and abide by it with little or no backlash. measuring success • A situation in which employees will be communicating directly with customers, co-workers or supervisors who speak only English. • Emergencies or other situations in which safety concerns dictate that workers speak a common language. For example, an English-only rule is applicable to a lab or manufacturing facility in which potentially hazardous materials are being used. • Cooperative work assignments, such as a product assembly line that requires an English-only rule to facilitate/promote efficiency. • A supervisor who only speaks English and monitors an employee who regularly communicates with co-workers and/or customers. Once the business requirements are established, craft a policy that is no more restrictive than necessary. Stick to the business rationale. Litigation will surely ensue, for example, if the rule prohibits employees from speaking their native language during lunch or regularly scheduled work breaks. Present the rule to management first, explaining what it affects, what it does not and the consequences if it is violated. Managers must understand the policy thoroughly because it will be their job to enforce it. Then meet with employees. Explain the policy in much the same manner, but drive home the business necessity portion of the rule. Finally, promulgate the rule and enforce it. Overall policy monitoring is usually left to Human Resources. Re-evaluate the policy annually, especially if business needs are subject to change. As a partner and litigator with Porter & Hedges LLP, Joanne M. Vorpahl has experience in labor and employment issues and has represented employers before both the U.S. Department of Labor and the U.S. Equal Employment Opportunity Commission. She is Peer Review Rated and can be reached at jvorpahl@porterhedges.com. martindale.com/c2c May 2008 best practices 11 http://www.martindale.com/c2c

Table of Contents Feed for the Digital Edition of Counsel to Counsel - May 2008

Counsel to Counsel - May 2008 Contents Harassment Policies NEC Corporation of America and Duane Morris LLP Lost or Stolen Data: Minimizing Fallout On-Boarding the Board Drafting Fair, Efficient and Enforceable Arbitration Agreements Responding to Counterfeit Products Crafting an English-Only Workplace Policy Distressed Debt: New Players, Global Sophistication Make Restructuring More Complex IP Confidential: Plan Ahead, Act Fast to Protect Your Trade Secrets Adverse Changes: Think Ahead in a Strained M&A Market Optimizing Web 2.0 Technology: Expanding Your Professional Network Union Pacific Railroad Company and Patton Boggs LLP Warming Warning: Develop Your Climate Change Strategy Now Risk Sharing: Expect New Obstacles and Expenses in Syndicated Loans E-Discovery in Action Diversification at the Gate Energy

Counsel to Counsel - May 2008

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