Upon my arrival at the office this morning, after getting my coffee, I sat down at my computer and went to read BNA’s Daily Labor Report, as I do first thing almost every morning. After reading about the most recent actions in Congress seeking to block the NLRB’s Ambush Election Rules, I was attracted to an article that was entitled “English-Only Policy for Hospital Workers Violated Rights . . .” Since this is an issue that pops up regularly, I wanted to read the most recent case on the subject, so I opened the article and was surprised to find that this was an NLRB case, not an EEOC case. On March 18, 2015, Administrative Law Judge Lisa D. Thompson found that a Nevada health systems policy that required employees to speak English at all times when on duty violated Section 8(a)(1) of the National Labor Relations Act since it could restrict employees from engaging in discussions regarding terms and conditions of employment. The employer argued that its English only rule was based on guidance from the Equal Employment Opportunity Commission that allowed such rules for reasons of business necessity.
Not surprisingly, ALJ Thompson noted that this was an issue of first impression for the National Labor Relations Board, since no prior Decision of the NLRB had ever addressed the issue. Quoting from the Decision, the rule specifically “requires all employees to speak and communicate only in English ‘when conducting business with each other,’ ‘when patients or customers are present or in close proximity,’ and ‘while on duty between staff, patients, visitors [and/or] customers . . . unless interpretation or translation is requested or required.’” In seeking the finding that the rule was a violation of the National Labor Relations Act, Counsel for the General Counsel (in layman’s parlance – the prosecutor) argued that the rule was overbroad and that it inhibited employees, particularly non-native English speaking employees, from being able to freely communicate (in their native language) about working conditions and/or other terms or conditions of employment. As noted, the employer’s defense was based, at least in part, on current EEOC guidance. Although the Administrative Law Judge gave the appearance of analyzing the potential tension between Section 7 of the National Labor Relations Act and the EEOC Guidance, she dealt with this by quickly concluding that the employer’s rule was not justified by business necessity. With respect to the employer’s arguments that nothing in the rule prohibited employees from speaking in their own language on their own time, the Administrative Law Judge launched into a comparison of this rule with the Board’s traditional no-solicitation rule analysis.
Less surprisingly, the ALJ also found Employer rules prohibiting conduct that interferes with the Employer’s operations or brings “discredit” on the Employer, or making negative comments about co-workers or the hospital to be violative of the Act. Even though most Employers would consider these rules to be very reasonable, the Obama NLRB has been striking them down at a rapid rate. Valley Health System 28-CA-123611
This case appears to represent yet another example of the NLRB’s willingness to expand the scope of its enforcement authority, even if it potentially conflicts with other administrative agencies. Accordingly, employers are advised yet again of the need to thoroughly review all of their existing rules and policies to avoid being found guilty of an unfair labor practice by the National Labor Relations Board.
This article is authored by attorney Thomas R. Davies and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.
Tags: EEOC, Equal Employment Opportunity Commission, Harmon & Davies, National Labor Relations Act, National Labor Relations Board, NLRB, Tom Davies
