“Preventing other languages, our call-out policy is broken, and preventing an ex-employee from stealing employees!” HR AMA With CEDR and Paul Edwards!

Hello AADOM Tribe! Welcome back to HR Tuesday and the monthly LIVE Ask Me Anything with Paul Edwards, CEDR CEO and Founder, and Heather Colicchio, founder and president of AADOM. Anytime you feel like a little extra perspective or help might be nice throughout the year, keep sending your most challenging HR questions to Paul and CEDR’s team of HR professionals. Our team will pick from the dozens of great questions you all submit and do our absolute best to give some effective and creative ideas for solving your issue. To submit your questions, click here!

All your daily human resource issues likely have some state, federal, or local employment laws that you must comply with while, at the same time, we know you are trying to find the best human way to solve the core problem. We will fit the two in this series together and help you devise some great resolutions.

Now, let’s get started… Here are some of your best submissions this month.

1. We are a practice in Delaware with 24 employees. We have a couple of employees who speak Spanish to each other in our otherwise English-speaking office. When they’re together with no one around, I don’t see a problem with it; however, they do it around all of us and even patients. I’m starting to get worried it’s making others uncomfortable since we don’t know what they are saying. Can I say that they can only speak English unless we need them to speak Spanish for a patient?
2. Our practice is in Florida and has 40 total employees. We have an ex-employee who keeps texting our current employees about how great their new employer is and that everyone should quit our practice and work for them instead. Is there anything I can do to stop her from texting my employees about this?
3. Our practice is in Utah and has 14 employees. We do not have a “call in sick” protocol such as, “If you have the following symptoms, we ask that you stay home from work.” Is that something you recommend?

Let’s get to the answers…

Question: We are a practice in Delaware with 24 employees. We have a couple of employees who speak Spanish to each other in our otherwise English-speaking office. When they’re together with no one around, I don’t see a problem with it; however, they do it around all of us and even patients. I’m starting to get worried it’s making others uncomfortable since we don’t know what they are saying. Can I say that they can only speak English unless we need them to speak Spanish for a patient?

The legal side of things: The most important thing to keep in mind with this situation is the EEOC, or the Equal Employment Opportunity Commission. These are the people that enforce federal anti-discrimination laws. When it comes to something like languages, the EEOC looks at policies requiring only English in the office with a lot of scrutiny. Specifically, they find that “rules requiring employees to speak only English in the workplace can violate the law unless the employer can show that they are justified by business necessity.”  

In layman’s terms, that means that unless you can prove an English-only policy is required for safety considerations or some other business necessity (such as properly communicating with patients, clients, or customers), then you might want to think about handling this another way. In our human solution, we are going to address how you might address the issue with no policy, at least to start with.

Keep in mind that one reason we want to avoid the policy is that you cannot restrict personal conversations between employees that aren’t work-related, during breaks, or other non-work times. You also can not regulate your employee’s discussions about their working conditions.

Now imagine that the only way for the two employees to realistically engage in protected activity in a meaningful way is for them to speak in their native language. You can quickly see that a broad English-only policy would run afoul of the NLRA and the laws that the EEOC has established.

Now for the human approach: We get your question often, and it is accompanied by concerns like “it’s making the other employees uncomfortable because they think the conversation is rude and about them,” “two patients have complained, and a new team member is saying she feels left out,” and other concerns similar to that. As we stated, your first instinct may be to write a policy, issue a memo, or address it in a team meeting. Don’t do that.

Take into account that not only is the EEOC quite critical of English-only policies, but also consider that by creating a policy, you’d be drawing attention to the few people that everyone knows speak Spanish, and that can make your Spanish speakers feel uncomfortable too (like yeah, we had to write this policy because of them!)

Let’s identify what the work-related problems are here and talk about it with the employees.

We are going to use three key points:

• When having work-related conversations, please make sure that you are communicating in a language that everyone present, including patients, can understand.
• Everyone needs to know what’s going on with the patient, and the patients need to feel comfortable understanding what’s happening around them when they are at your business.
• If they’re speaking another language, their coworkers may be missing critical pieces of information – or unable to correct things that are being done wrong. Plus, the patients may feel like they’re being talked about in a negative way.

Talking it out is oftentimes the best bet toward reaching a resolution, so always remember to try that first. If this does not resolve the issue, then your next step may be to have a professional write the policy for you while making sure you receive specialized training and support if you need to enforce it.

AREN’T THESE GREAT QUESTIONS?!, HR TUESDAY DEPENDS ON THE AADOM TRIBE ASKING GREAT HR-RELATED QUESTIONS! Submit your HR questions for Paul to discuss on the next HR Tuesday LiveCast here!

Question: Our practice is in Florida and has 40 total employees. We have an ex-employee who keeps texting our current employees about how great their new employer is and that everyone should quit our practice and work for them instead. Is there anything I can do to stop her from texting my employees about this?

The legal side of things: Legally, in general, there is nothing you can do to stop an ex-employee from texting your current employees. Even if this former employee happened to have been a doctor or a high-level manager (in which case they may have signed a non-solicitation agreement), simply talking about how great their new place of work is most likely is not enough to say they are unlawfully “soliciting” your staff. That said, if they are actively soliciting and you can prove it, this moves out of the context of employment law to civil and contract law.

Policies in your employee handbook would be ineffectual and, in places like California, could rise to the level of a criminal misdemeanor for violating the employee’s civil rights.

Now for the human approach: Retention is difficult, even without having a crappy-mcbuttface ex-employee trying to steal your current ones. We get it, and it feels personal!

We can share that oftentimes, when an employee or two leave for another place, it’s not the worst thing in the world. If your fear is they are about to gut your entire team, then one of the things you would have already been focused on is having created a workplace that people aren’t so easily tempted to leave. Would you want to work at your business? Sometimes asking yourself this question can enlighten you about some things you’d want to change to make your employees happier.

You already know this, but it bears reminding ourselves that the process of self-examination is a key part of running the HR at your business. Things like competitive pay, a good benefits package, and management that focuses on employee engagement can all really elevate your place of work over the competition. If you know you are doing your best in these areas and someone still leaves, then you’ve done your best and the next step is to try to understand why they left and see if there is anything you might do in the future to reduce the likelihood others will want to leave.

Additionally, keep the conversation open with your employees and be honest about what the strengths and weaknesses within your business and team are. You give them feedback on their performance, so allow them to give it to you, also. What do they like about working for you? What do they think would be a good idea to change? Working together to improve your workplace will go a long way to increasing your retention; we all love to be heard.

Question: Our practice is in Utah and has 14 employees. We do not have a “call in sick” protocol such as, “If you have the following symptoms, we ask that you stay home from work.” Is that something you recommend?

The legal side of things:

It is absolutely okay to include a set of circumstances or conditions that, when met, qualify an employee to contact you to ask if they should come into work. Things like: if you have a fever or feel that you may have the flu or a bad cold, we ask you to follow our procedure for calling in. But we need to place a huge caveat here.

Many states have implemented mandatory paid sick day benefits for all employees. In those states, employers need to be educated on what you can and can not require of an employee as far as calling out sick. In most instances where these laws exist, you cannot ask for details or a doctor’s note unless or until the employee has used all of the state-protected leave.

Now for the human approach: From what we can tell, it seems like you’re looking for a way to stop employees from coming to work if they may be sick. We get it! In small businesses (or any working environment really), sickness spreads fast! No one wants to deal with that. The days of requiring everyone to tough it out and get everyone else sick in the process are over.

If employees are coming into work even though they may be sick frequently enough for you to want to create a policy about it, there is usually at least one of two common denominators – the need to get paid and the fear of getting into trouble for being absent.

So, what can you do? Make sure you have a policy asking employees to tell you if they aren’t feeling well, but this only works if you promote an atmosphere where employees feel comfortable calling out sick when they feel they need to.

HAVE A QUESTION FOR PAUL? Submit your HR questions for Paul to discuss on the next HR Tuesday LiveCast here!