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Immigration, English-Only and National Origin Protections: What Every California Employer Needs to Know

By Procopio Associate Lauren N. Vega

Effective July 1, 2018, every California employer must comply with new regulations that prohibit language restrictions in the work place, inquiries regarding immigration status, and employee height and weight requirements. California’s Fair Employment and Housing Commission (“FEHC”) has adopted expansive new Fair Employment and Housing Act (“FEHA”) regulations that expand the definition of “national origin” and aim to broaden protections for employees on the basis of national origin and immigration status. It’s critical that employers ensure they are fully compliant with these new regulations.

Language Restrictions and English Proficiency

The new regulations target workplaces that impose “English-only” rules by stating that such policies are presumptively unlawful unless the employer can meet a strict three-part test showing that:

  1. The language restriction is justified by business necessity;
  2. The language restriction is “narrowly tailored”; and
  3. The employer has effectively notified its employees of the circumstances and time when the language restriction is required to be observed and of the consequence for violating the language restriction.

For an employer’s language restriction policy to be a “business necessity” it must be “necessary to the safe and efficient operation of the business” and “effectively fulfill the business purpose it is supposed to serve.”  The business necessity prong will be difficult for many employers to meet given the requirement that an English-only rule in the workplace must advance safety concerns.  A language restriction will only be considered “narrowly tailored” if “[t]here is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory intent.” A language restriction policy that “merely promotes business convenience or is due to customer or co-worker preference” will not suffice. 

Importantly, English-only rules during an employee’s non-working time (e.g., meal and rest periods or unpaid employer-sponsored events) are always unlawful regardless of whether the employer can meet the three-part test.  According to the FEHC’s commentary on the new regulations, an employer’s attempt to restrict language during nonworking hours (e.g., an “English-only” policy in the break room) may be sufficient employer “control” over that time as to render the time compensable.  This means that an employee could potentially file a claim for overtime, unpaid wages, and penalties if an employer enforces a policy that requires employees to speak English during unpaid meal periods or at unpaid company events.  Language restriction policies during non-working hours should immediately be abolished.  Employers with language restriction policies during working hours are advised to consult counsel to determine whether the policy will withstand the new regulations. 

Additionally, the regulations prohibit discrimination based on an applicant or employee’s accent unless the employer proves that the accent “interferes materially” with the individual’s ability to perform his or her job.  If a person has an accent but it is able to communicate effectively, be understood in English, and perform his or her job, then he or she cannot be discriminated against on the basis of the accent.  For example, some LinkedIn job posts seek applicants with a “neutral accent.”  This practice is now presumed unlawful unless the employer can establish that having an accent would interfere materially with the person’s ability to perform the job. 

Employers are also prohibited from discriminating against an applicant or employee based on English proficiency unless the level of proficiency required by the employer (e.g., spoken, written, etc.) is justified by business necessity.  In determining whether English proficiency is a business necessity, relevant factors include the type of proficiency required by the job (e.g., spoken, written, aural, and/or reading comprehension), the level of proficiency required, and the nature and job duties of the position.  Employers who intend to impose English proficiency requirements should confirm that the requirements are justified by business necessity and should also update job descriptions to explain the type and degree of English proficiency required for the job.

Definition of National Origin

California law already prohibits discrimination on the basis of national origin.  The regulations have clarified that the term “national origin” broadly includes, but is not limited to, the following six categories:

  1. Physical, cultural, or linguistic characteristics associated with a national origin group;
  2. Marriage to or association with persons of a national origin group;
  3. Tribal affiliation;
  4. Membership in or association with an organization identified with or seeking to promote the interests of a national origin group;
  5. Attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and
  6. Name that is associated with a national origin group.

The regulations also provide that the “national origin groups” definition includes, but is not limited to, “ethnic groups, geographic places of origin, and countries that are not presently in existence.”

Immigration-Related Practices

The new regulations limit practices related to verifying employment eligibility.  Inquiries into an applicant or employee’s immigration status are unlawful unless the employer can show by “clear and convincing evidence” that such inquiry is “necessary to comply with federal immigration law.”  Employers who are unsure of whether an inquiry into an employee’s immigration status is required by federal law should consult counsel immediately.

The regulations also specify that it is unlawful for an employer to discriminate or retaliate against an employee because of the employee’s immigration status, “unless the employer has shown by clear and convincing evidence that it is required to do so in order to comply with federal immigration law.”

Furthermore, employers are prohibited from recruiting applicants or employees based on national origin.  For example, an employer’s LinkedIn post specifically seeking Mexican employees would violate the new FEHA regulations.  The regulations also prohibit employers from assigning employees to particular positions, facilities, or geographical areas of employment based on national origin.

Height and Weight Requirements

Under the new regulations, height and weight requirements may be unlawful when an employee can establish that these requirements have a disparate impact on the basis of national origin.  An employer can rebut this presumption of an unlawful height and weight requirement by demonstrating that the requirements is job related and justified by business necessity, and that the purpose of the requirement cannot be achieved as effectively through less discriminatory means.

It won’t be news to any employer in California that there are a great many regulations that strictly govern their operations, and that those regulations are subject to revision and enhancement. It’s critical that employers proactively ensure their policies and operations are legally compliant, working hand-in-hand with their labor and employment law counsel.

 

Lauren N. Vega is an Associate with Procopio and a member of its Labor and Employment Law Practice Group. Lauren focuses her practice on all aspects of the employment relationship, including discrimination, retaliation and harassment; wrongful discharge; employee classification issues; handbooks and policies; class and representative actions; and the drafting of a variety of employment agreements.