Employers Must Comply with Maze of Foreign-Language Posting Requirements

Employers often are required or encouraged to post notices about employment rights in foreign languages if employees aren’t fluent in English. However, federal, state and local requirements differ greatly. Companies trying to comply might overcompensate, resulting in crowded employee bulletin boards.

“If an employer posts seven copies of each mandatory poster, it could be overwhelming to employees and require extraordinary ‘Where’s Waldo?’-type skill to locate a specific poster,” said Scott Fanning, an attorney with Fisher Phillips in Chicago. Plaintiffs’ attorneys frequently request photographs of such bulletin boards in litigation and may argue that the unnecessary posting of so many notices “was intentional to hide the information in plain sight.”

To avoid this issue, the actual demographics of the workplace should be considered and notices posted in foreign languages only when there is a legitimate need, he said.

In workforces where employees are literate in a variety of languages other than English and foreign-language postings aren’t required, employers might consider setting certain thresholds for posting in a particular language, such as if 20 percent or more of the workforce speaks the language, Fanning said. “For other languages, employers may always make the foreign-language versions available electronically on its online bulletin boards.” If all employees work remotely, electronic postings rather than bulletin board notices may satisfy federal posting requirements.

But employers should also follow state and local requirements for foreign-language employment law posters, which may set thresholds much lower than 20 percent, according to GovDocs, a compliance software platform provider headquartered in Eagan, Minn.

EEOC Requirements

There are generally no formal requirements for posting notices in languages other than English that apply to laws enforced by the U.S. Equal Employment Opportunity Commission (EEOC). These laws include Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act and the Americans with Disabilities Act.

While the EEOC only requires posters in English, “if a portion of an employer’s workforce is not literate in English, it is highly recommended that an employer post the notice in a language that is accessible to its workforce,” Fanning said. “Doing so assists the employer in demonstrating their good-faith efforts to comply with the law.” This is because the general intent of the posting requirements is to effectively communicate information to workers.

This recommendation is “especially true in circumstances where the EEOC already makes available the required posters in the language of an employer’s workforce,” Fanning said. The EEOC provides these posters in Arabic, Chinese, Haitian Creole, Korean, Russian, Spanish, Tagalog and Vietnamese.

EEOC settlements often require employers to post notices in foreign languages informing employees of their rights, said Samantha Barnfather, an attorney with Faegre Drinker in Indianapolis. The EEOC also frequently requires distribution of anti-discrimination policies in foreign languages to staff in its settlements, as well as staff training in languages other than English, she added.

DOL Requirements

Other federal statutes and agencies sometimes require postings in other languages.

For example, the Family and Medical Leave Act, enforced by the U.S. Department of Labor (DOL), requires providing notice in a language in which employees are literate where the workforce has a significant portion of workers who are not literate in English.

“If an employer believes it has a lot of workers who are not literate in English, the legally conservative approach may be to assume it has a significant portion of workers who are not literate in English and act accordingly,” said Tareen Zafrullah, an attorney with Faegre Drinker in Indianapolis.

“Always err on the side of more info is best,” said Joyce Chastain, SHRM-SCP, an HR consultant with The Krizner Group in Tallahassee, Fla. She noted that the DOL has an online, step-by-step guide for figuring out what the posting requirements are for laws it enforces.

Spanish-Language Posting Requirements

Spanish-language labor law postings are sometimes required by the federal government, according to GovDocs, including for:

• All H-2A employers that have a significant portion of their workforce made up of non-English-proficient, Spanish-speaking employees, addressing their rights under the program.
• All H-2B employers with a significant portion of workers who aren’t fluent in English but are in Spanish, posting about workers’ rights under the program.
• All federal contractors that have a significant portion of their workforce made up of non-English-proficient, Spanish-speaking employees, informing them of their National Labor Relations Act rights.
• All federal contractors and subcontractors using E-Verify, including the right-to-work and program participation posters.
• Agricultural employers, agricultural associations and farm labor contractors, informing workers of their Migrant and Seasonal Agricultural Worker Protection Act rights.

In many states and localities, anti-discrimination statutes, minimum wage laws, right-to-work laws, statutes prohibiting human trafficking and workers’ compensation laws also require notice postings in Spanish.

Additional Resource: SHRM’s Electronic Labor Law Poster Service.