Labor Attorney

National Origin Discrimination, Labor Law, and Employment Law in Hawaii: Employers Increasingly Facing Litigation over English-Only Rules

Written on June 30, 2010 by admin

Filed Under: Labor Law

National Origin Discrimination, Labor Law, and Employment Law in Hawaii:  Employers Increasingly Facing Litigation over English-Only Rules as More Complaints are Filed with the EEOC

Title VII prohibits discrimination because of “national origin.”  The Equal Employment Opportunity Commission, the agency charged with the enforcement of Title VII, defines national origin discrimination as the denial of equal employment opportunity because of an individual’s ancestry, place of origin, or because the individual possesses the physical, cultural, or linguistic characteristics of a national origin group.

The EEOC has consistently scrutinized English-Only policies very closely and has taken the position that such policies can be a proxy for national origin discrimination.  

Given the amount of attention given to immigration issues on a national scale, the significant increase in national origin claims being filed with the EEOC in the last few years is no surprise.  Many of these claims arise from employers promulgating English-Only policies.  In the EEOC’s view only the most limited policies do not violate Title VII.

Recently, the EEOC brought suit against a California Nursing Home company that prohibited Spanish-speaking employees from speaking Spanish to Spanish-speaking residents, and also while on breaks or in the parking lot of the facilities.

According to the EEOC, in addition to being required to comply with an overbroad English-Only policy that the employer did not apply even-handedly, it was alleged that Hispanic employees were given desirable work than non-Hispanic counterparts, were paid less, and promoted less often.  In April 2009 the EEOC and the company settled for $450,000.

Hawaii employers are also finding it difficult to balance legitimate business needs and Hawaii employment practices law prohibiting ancestry or national origin discrimination.  Hawaii law, HRS Chapter 378, prohibits discriminating against an employee in the terms or conditions of employment, because of their “ancestry.” However, as a practical matter “ancestry” and “national origin” are synonymous under Hawaii law.

Hawaii law is arguably more expansive than Title VII in that employers are precluded from making pre-employment inquiries and requests for information which tend to lead to disclosure of the person’s ancestry/national origin, unless the inquiry is justified by a bona fide occupational qualification.

Both the EEOC and the Hawaii Civil Rights Commission (“HCRC”) have issued regulations addressing the issue of English-Only rules and whether and to what extent employers prohibiting foreign languages to be spoken in the workplace have violated the prohibition against national origin discrimination.

The EEOC and HCRC’s regulations presume that blanket English-Only rules are per se unlawful.  Their position also is that limited English-Only policies are lawful only if justified by business necessity.  2002 EEOC guidelines list the following examples where business necessity justifies an English-Only policy: 

Employers with English-Only rules should also consider doing the following:

Additional information may be accessed here: www.eeoc.gov/policy/docs/national-origin.html#VC.

Roman Amaguin, Esq; http://www.amaguinlaw.com; http://www.employmentlawyerhawaii.com

 

 

What is Labor Law

Written on January 3, 2010 by admin

Filed Under: Labor Law

Generally, what is labor law?

Labor law or employment law is the body of laws, administrative rulings, and precedents which addresses the legal rights of, and restrictions on, workers and their organisations. As such, it mediates many aspects of the relationship between trade unions, employers and employees. In some countries (such as Canada), employment laws related to unionised workplaces are differentiated from those relating to particular individuals. In most countries however, no such distinction is made.
The function and origins of labor law
Labor law arose due to the demands of workers for better conditions and the right to organise, and the simultaneous demands of employers to restrict the powers of workers’ organisations and keep labour costs low. Employers costs can increase due to workers organising to win better wages, or by laws emposing costly requirements, such as health and safety or equal opprtunities conditions. Workers’ organisations, such as trade unions, can also transcend purely industrial disputes, and gain political power – certain interests in society may be opposed to this. The state of labour law at any one time is therefore both the product of, and a component of the conditions for, struggles between different interests in society.

For example, workers’ and trade union legal rights in the USA are relatively restricted, compared to most European countries, but relatively liberal compared to totalitarian regimes – many of which ban trade unions altogether.
Important issues in labor law
There are two broad categories of labour law. That relating to employees’ rights at work, and that governing the activity of trade unions and other workers’ organisations. Matters relating to employees rights and obligations in relations to trade unions are best dealt with in the second category.
Trade unions and workers’ organisations
Trade unions (or ‘labor unions’) are the form of workers’ organisation most commonly defined and legislated on in labour law. However, they are not the only variety. In the USA, for example, ‘workers’ centres’ are associations not bound by all of the law relating to trade unions.
Strikes
Strike action is the weapon of the workers most associated with industrial disputes, and certainly among the most powerful. In most countries, strikes are legal under a circumscribed set of conditions. Among them may be that:

The strike is decided on by a proscribed democratic process.
Hence, wildcat strikes are illegal.
Sympathy strikes, against a company by which workers are not directly employed, may be prohibited.
General strikes may be forbidden under pretext of public order
Certain categories of person may be forbidden to strike (airport personnel, health personnel, police or firemen, etc.)
Strikes may be pursuied by people continuing to work, as in Japan or in hospitals

Pickets
Picketing is a tactic which is often used by workers during strikes. They may congregate outside the business which they are striking against, in order to make their presence felt, increase worker participatoin and dissuade (or prevent) strike breakers from entering the place of work. In many countries, this activity will be restricted both by labour law, by more general law restricting demonstrations, or sometimes by injunctions on particular pickets. For example, labour law may restrict secondary picketing, or flying pickets. There may be laws against obstructing others from going about their lawful business (scabing, for example, is lawful); making obstructive pickets illegal. And in some counries, such as Britain, there may be court orders made from time to time against pickets being in particular places or behaving in particular ways (shouting abuse, for example).
Boycotts
A boycott is a refusal to buy, sell, or otherwise trade with an individual or business who is generally believed by the participants in the boycott to be doing something morally wrong.
Unofficial industrial action
Throughout history, workers have used tactics such as the go-slow, sabotage or just not turning up en-masse in order to gain more control over the workplace environment, or simply have to work less [1]. Some labour law explicitly bans such activity, none explicitly allows it.
Trade unions and their members
The law of some countries place requirements on unions to follow particular procedures before certain courses of action are adopted. For example, the requirement to ballot the membership before a strike, or in order to take a portion of members’ dues for political projects. Laws may guarantee the right to join a union (banning employer discrimination), or remain silent in this respect. Some legal codes may allow unions to place a set of obligations on their members, including the requirement to follow a majority decision in a strike vote. Some restrict this, such as the ‘right to work’ legislation in some of the United States.
Rights at work

Equal opportunities in recruitment, pay and treatment

Minimum wages
There may be law stating the minimum amount that a worker can be paid per hour. Both Britain and the USA have a law of this kind, though the figure provided for in the USA is so low as to sometimes be insufficient for the means of a worker’s subsistence. In response to this, Living wage ordinances have been passed by many city authorities in the United States, which define a minimum wage for employees of those authorities, and sometimes for the employees of companies with which the authority contracts. These, therefore, constitute law, albeit not law whch restricts businesses in general.
Rights to consultation, fair treatment, and against unfair dismissal

Hours of labor and holidays
Before the Industrial Revolution, the workday varied between 11 and 14 hours. With the growth of capitalism and the introduction of machinery, longer hours became far more common, with 14-15 hours being the norm, and 16 not at all uncommon. Use of child labour was commonplace, often in factories. In England and Scotland in 1788, about two-thirds of person working in the new water-powered textile factories were children ([1]).

The first law on the length of a working day was passed in 1833 in England, limiting miners to 12 hours, and children to 8 hours. The 10-hour day was established in 1848, and shorter hours with the same pay were gradually accepted thereafter.

After England, Germany was the first European country to pass labor laws; Chancellor Bismarck’s main goal being to undermine the Social Democratic Party of Germany (SPD). In 1878, Bismarck instituted a variety of anti-socialist measures, but despite this, socialists continued gaining seat in the Reichstag. The Chancellor, then, adopted a different approach to tackling socialism. In order to appease the working class, he enacted a variety of paternalistic social reforms, which became the first type of social security. The year 1883 saw the passage of the Health Insurance Act, which entitled workers to health insurance; the worker paid two-thirds, and the employer one-third, of the premiums. Accident insurance was provided in 1884, whilst old age pensions and disability insurance were established in 1889. Other laws restricted the employment of women and children. These efforts, however, were not entirely successful; the working class largely remained unreconciled with Bismarck’s conservative government.

In France, the first labor law was voted in 1841. However, it only limited under-age miners’ hours, and it was not until the Third Republic that labor law was effectively enforced, in particular after Waldeck-Rousseau 1884 law legalizing trade unions.
Health and safety
Other labor laws involve safety concerning workers. The earliest English factory law was drafted in 1802 and dealt with the safety and health of child textile workers. For discussion of modern workplace safety laws, see Occupational safety and health.

Resource: http://www.a-law.org/articles/article-3.html