“Comprenden sus empleados las políticas de empleo?” If you did not understand that, take notice of a recent decision by a federal court judge.
In the case, an employee sued his former employer for alleged unpaid wages. When the employee began his employment, he signed an agreement stating he would be required to arbitrate any dispute relating to his employment. Not surprisingly, the employer asked the court to send the case to arbitration.
The employee argued the arbitration agreement was unenforceable because the employer had committed fraud by refusing his requests for: (1) a version of the agreement in Spanish (he was given other documents in Spanish, but not the agreement); (2) an explanation of the agreement in Spanish; and (3) time to take the agreement home to review it.
The federal court agreed that the employee had been deceived. The judge ruled that since the employer had refused all of the employee’s requests, the arbitration agreement was unenforceable. The judge wrote that policy favors arbitration over litigation and that a party’s poor understanding of English generally will not allow a party to get out of a contract. However, in this unique situation, where the employee showed he was denied assistance understanding the agreement and was not allowed to take it home to review it, the judge found the employee was not bound by the agreement.
This decision comes on the heels of the Florida Supreme Court’s decision in Basulto v. Hialeah Automotive, an unrelated consumer case in which the Court held that for an arbitration agreement to be enforceable, the parties must have a “meeting of the minds.” Basulto has been interpreted by some as potentially opening the door to the argument that an arbitration agreement written in English cannot be enforced against a party who does not speak English.
Under certain laws, like the FMLA, employers are required to post a “general notice” in languages other than English where a “significant portion of the employer’s workforce is not literate in English.” (The DOL has posted versions of workplace posters regarding, among other laws, the FLSA and FMLA, in other languages.)
A number of employers take a “safe” approach by translating critical employment policies into languages other than English, including Spanish and Creole (especially here in Florida). Others translate their entire handbook. If you have employees who are not literate in English, should you translate critical employment policies (e.g., equal employment opportunity, anti-harassment, discrimination, and retaliation policies) and make them available to all employees? That is a business decision each employer must make.
By the way, the first sentence translated means: Do your employees understand the employment policies?