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Language Barriers Pose Worker Rights Pitfalls During Pandemic

Oct. 9, 2020, 10:04 AM

Immigrant workers’ exclusion from critical discussions because they’re not conversant in English is again at the forefront of food industry concerns as the Occupational Safety and Health Administration, and employers that must comply with its rules, face greater public scrutiny during the coronavirus pandemic.

Though language barriers have long been an issue in workplaces where mono-lingual non-English speakers are numerous, new coronavirus protocols mean that workers face greater risk of infection if they aren’t trained properly, and companies that don’t ensure comprehension could face litigation.

The issue arose most recently in an employment discrimination complaint filed Sept. 28 at the federal district court in Eugene, Ore. There, a Latina worker at National Frozen Foods Corp., Perla Torres, alleges that a company supervisor in April directed her to help make a list of Spanish-speaking employees who “did not speak good English” to ensure that only “English speaking” workers spoke to state OSHA investigators dispatched in the wake of a Covid-19 outbreak there.

“For at least the first day of the OSHA investigation at National’s Albany plant, this had a chilling effect on Hispanic employees. Plaintiff Torres did not feel she could refuse to perform this highly offensive task out of fear she would be subjected to adverse employment actions,” according to the complaint.

Torres and a National human resources officer had contacted the agency after company officials allegedly “laughed off” their concerns about unsafe working conditions.

National Frozen Foods and its counsel didn’t respond to calls and emails from Bloomberg Law seeking comment on the allegations in the Torres complaint.

Potential language barriers to OSHA investigations are a long-standing issue, said Thomas Saenz, president and general counsel for the Mexican American Legal Defense and Education Fund. “In fact, I would say, with the growing Latino workforce in some of the more dangerous occupations, it is perhaps the most significant obstacle to adequately enforcing our occupational safety and health standards.”

“Training is essential” whenever there’s a new material, a new machine, a new chemical, or new protocol for workers to understand, Saenz said. “If you are relying on coworkers to interpret, and you don’t have written materials in their language, then that training is going to fail.”

Immigrants represent about 27% of workers in food processing, and 37% of meat processing industry workers, according to Migration Policy Institute research.

Mark Lauritsen, the packaging and manufacturing division director for the United Food and Commercial Workers International Union, said that he estimates at least 65% of meat processing workers don’t speak English as a first language.

And as more than 161 UFCW-represented food processing and meat packing workers have died of the virus and more than 23,000 workers were infected or exposed to Covid-19, Lauritsen said “there’s going to be a language barrier in every instance” where OSHA inspects such a facility.

“An employer is very quickly in legal jeopardy when it’s seen as keeping employees away from a compliance officer, for whatever reason,” said Brian Hendrix, a management said safety attorney at Husch Blackwell LLP.

An appropriate response is to “to tell OSHA up front, ‘We have workers who won’t be able to communicate with you in a clear fashion,’ rather than hiding workers,” Hendrix said in a phone interview.

Two Decades On

The language barrier, and its impact on immigrant workers, can be found in cases dating back to the early 2000s.

In 2002, the U.S. Court of Appeals for the First Circuit upheld a federal safety appeals agency decision addressing the importance of ensuring workers are adequately trained, in a lawsuit against a Massachusetts construction company.

The administrative law judge in that case found that the training provided by Modern Continental Construction Inc. wasn’t tailored to the needs of employees with little experience or with limited understanding of English, resulting in an injury for at least one worker.

The ALJ also noted that Modern Continental’s training materials were provided only in English, despite a large number of employees with limited English proficiency.

Nearly a decade later, in 2010, OSHA issued a memorandum to regional administrators, reiterating the agency’s policy that employee training materials on OSHA standards “must be presented in a manner that employees can understand,” specifically noting language for workers who aren’t fluent in English.

Interpreters Needed

One aspect of the linguistics barrier is the overall lack of OSHA inspectors with multi-language skills and the need for OSHA to conduct inspections at meat processing plants with a workforce of largely immigrant workers.

An OSHA spokeswoman told Bloomberg Law in an Oct. 2 email that “all workers are entitled to file complaints, be interviewed, and participate in the OSHA investigation in their language.”

When an interpreter is needed, and a bilingual inspector isn’t available, OSHA uses a tele-interpreter service “to ensure that a non-English speaking worker can participate fully in an OSHA investigation,” the spokeswoman said, adding that OSHA’s complaint form, online complaint form, and other outreach and informational materials are available in Spanish.

OSHA’s latest Field Operations Manual also provides instruction on worker interviews, stating that “particular sensitivity is required” when interviewing a non-English-speaking employee. In such instances, inspectors should initially determine whether the employee’s comprehension of English is sufficient to permit conducting an effective interview.

Still, the safety agency doesn’t keep track of how many bilingual and multilingual compliance officers it has, its spokeswoman said.

Aaron Corvine, public information officer for Oregon OSHA, whom Perla Torres called upon to inspect National’s plant in the wake of the coronavirus outbreak, told Bloomberg Law that the agency employs bilingual inspectors, but declined to comment further.

Saenz said inspectors are left to rely on interpreters, who are most often another worker, supervisor, or a foreman, any one of whom may feel intimidated by the employer, and that can affect the accuracy of their interpretation.

As a result, mono-lingual, non-English-speaking workers “have very restricted access to OSHA enforcement,” Saenz said. “And that then encourages those workers not to report anything that’s going on in the workplace.”

OSHA has been clear about requiring training for employees in a way they will understand, said Husch Blackwell’s Hendrix. If an employer has a multilingual workforce, they will either have people on staff who are bilingual or multilingual or should hire people from outside for training purposes.”

Debbie Berkowitz, the National Employment Law Project’s Worker Safety and Health program director, lamented OSHA’s lack of overall inspections during the pandemic—the national agency said this month it’s fined just 37 establishments an aggregate $484,069 for pandemic-related infractions—adding that “very few workers have seen an OSHA inspector in their plant and in those plants where a worker doesn’t have the ability to speak English a supervisor translating defeats the purpose of an inspection. It’s intimidating.”

Interviews with vulnerable populations should be conducted outside the workplace, said Axel Fuentes, executive director of the Rural Community Workers Alliance. Earlier this year, the organization was part of an unsuccessful “public nuisance” lawsuit aimed at forcing OSHA to inspect a Smithfield Foods plant in Milan, Mo., where several workers were sent home after developing Covid-19 symptoms.

“On-site interviews makes it even harder for the workers to express themselves freely,” Fuentes said. “They cannot express themselves completely because they know a supervisor or coworker that is witnessing an interview will know that worker is part of an investigation,” adding that undocumented workers are particularly vulnerable.

‘A Recipe for Disaster’

Sometimes workers are barred from pursuing workplace safety litigation against their employers by state workers compensation laws, an obstacle not present in other areas of the law.

“The legal system doesn’t provide other tools,” Saenz said. If there are insufficient civil rights enforcers, for example, then workers can pursue a private right of action.

“I don’t have the same power when it comes to occupational safety and health” because of the workers comp bar, Saenz said. “It’s a recipe for disaster.”

So when it comes to language proficiency, Title VII of the Civil Rights Act and anti-discrimination law have given workers more traction in bringing a lawsuit against their employer.

Albertsons LLCagreed in June to pay $210,000 and revise its anti-discrimination policies as part of a settlement with the EEOC in a suit alleging the company allowed a store manager in southern California to harass Hispanic employees for speaking Spanish.

And in 2016, U.S. District Court for the Southern District of New York declined to dismiss a case where a Pearson Education Inc. worker alleged he was retaliated against by his employer and brought a Title VII claim after he was criticized by a supervisor for speaking in Spanish. The parties settled their dispute in 2017, according to court records.

Saenz said efforts to prevent non-English-speaking workers from participating in investigations can amount to discrimination and violations of Title VII, “because it clearly does have a disparate impact on Spanish, Latino workers.”

Employers are unlikely to prevail if their argument is that blocking non-English speakers from investigations is a “business necessity,” he said.

To contact the reporters on this story: Fatima Hussein in Washington at fhussein@bloombergenvironment.com; Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; Gregory Henderson at ghenderson@bloombergindustry.com

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