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Attorney General Issues Advisory to Nursing Homes on Immigrant Workers

By Howard M. Bloom
  • April 27, 2005

In early 2005, the Massachusetts Attorney General's Office issued an advisory to owners and operators of Massachusetts nursing homes regarding employment practices that may affect the rights of immigrant workers. The advisory focuses on two employment issues that particularly affect these workers – English-only policies and harassment.

Regarding the adoption and application of English-only policies by nursing homes, the advisory points out that such policies applied at all times in the workplace are considered unlawful because workplace rules which forbid the use of primary languages at all times subject immigrant workers to discriminatory terms and conditions of employment. However, the Attorney General acknowledged that English-only policies applied at certain times are lawful, as long as they have a nondiscriminatory purpose and are supported by a business necessity. Examples of business necessities may include job safety considerations and effective communication with customers or clients. The Attorney General's advisory also notes that the policy must be narrowly tailored, and the employer must give reasonable notice of the policy and the consequences of violations.

All English-only policies must be applied uniformly and may not be used to harass protected workers. With regard to implementing such policies, the Attorney General recommends that an English-only policy be in writing and that it include: when and where it applies; the consequences for not following the policy; a ban on discriminatory, selective, demeaning and/or disrespectful enforcement; a prohibition on harsh responses to unintentional language lapses; and possible disciplinary action for failure to adhere to the policy.

The advisory also suggests that the policy should identify who can enforce it, what the procedures are when an employee fails to adhere to it, how to lodge complaints about its enforcement. In addition, the policy should be translated into the native languages of all employees and distributed annually to all staff and to any new staff member upon hire. Finally, the Attorney General recommends regular review of policy enforcement, as well as training of all employees regarding the policy.

Based on this advisory and the similar position of the Equal Employment Opportunity Commission on English-only policies, nursing homes that intend to implement such a policy must ensure that it complies with the state and federal law and the positions taken by state and federal agencies. In addition to the requirements specified above, an English-only policy should state the specific business necessity for the policy and that it is limited to serving that purpose.

According to the advisory, the policy should explain that English is the common language to be used for business purposes and identify those times and areas where other languages may be permitted. For example, the policy should permit employees to speak the language of their choice in non-work areas, such as break rooms or restrooms. The policy may appropriately advise employees to keep all personal conversations to a minimum while they are working, regardless of the language utilized. When dealing with clients or residents who speak other languages, the policy should generally permit an employee to use the language preferred by the client or resident, if the employee speaks that language, or permit employees to locate an interpreter to help the resident.

The same advisory from the Attorney General includes recommendations on the prevention of a hostile work environment, including an explanation of the potential liabilities for nursing homes for harassment of immigrant workers by supervisors and non-supervisory staff, as well as by residents and other non-employees. Nursing homes are advised to develop a policy explaining the procedures for dealing with harassment, including a complaint and investigation procedure. Nursing homes also are advised to take appropriate corrective action against employees or residents with regard to such complaints, maintain a system to monitor complaints filed internally and externally, and provide training on harassment.

These recommendations are consistent with the position taken by the Massachusetts Commission Against Discrimination and the Equal Employment Opportunity Commission. Therefore, all nursing homes should seriously consider adopting them to avoid or minimize the potential for inappropriate behavior and the risk of liability for unlawful harassment.

©2005 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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