The Policy
Immigrant workers are particularly vulnerable to employer abuse across a broad spectrum of industries: foreign-born workers are more than twice as likely as their US-born
counterparts to suffer minimum wage violations. Immigrant workers often find their access to agency enforcement mechanisms blocked by their inability to navigate these systems in English. Passing laws that require agencies to accommodate limited-English proficiency (LEP) persons will help guarantee that a state’s most vulnerable workers are able to
effectively assert their workplace rights. Workers who know that they will receive services in a language that they understand are much more likely to come forward with complaints. Most state and federal agencies are woefully unprepared to accommodate LEP workers. Most have few staff members who speak other languages and rarely print forms in languages other than English. Federal law protects LEP workers’ right to access public services and benefits in any federally-funded activity, yet many agencies are unaware of their obligations and unprepared to meet them. Thus, immigrant workers frequently lack access to the very agencies charged with assisting them in enforcing their rights.
The best solution is to enact a state law that mandates state agencies to take affirmative steps to provide services to LEP persons. As an alternative, good agency LEP practices can be implemented through the issuance of administrative policies and plans.
How does the Policy Work?
The most effective remedy to address LEP access to agency enforcement is a
comprehensive state law explicitly requiring a range of affirmative policies for immigrant worker access. The state law should create an office specifically tasked with ensuring agency compliance with immigrant access. To further ensure compliance, the state law should include a private right of action to sue to enforce individual agency violations of LEP access programs.
If state legislation seems infeasible or the state DOL is approachable, an agency strategy can be pursued. Effective LEP administrative policies lay out a comprehensive plan that identifies language needs in the community, and requires the agency to adequately meet those needs through training and deploying bilingual interpreters and distributing translated written materials. Such plans require that either existing staff or hired interpreters be immediately available for the most commonly-encountered languages.
Although administrative policies are not easily challenged, state laws protecting workers against discrimination on the basis of national origin can be enforced in court. Denying non-English speaking workers access to agency services can be a form of national origin discrimination. The threat of legal action based on anti-discrimination laws can be an effective tool in negotiating with agencies that have failed to provide LEP access to services. The key to either strategy is for groups to urge a permanent and ongoing collaboration between the agency and affected community groups, providing feedback and
communication to the public.
What Are The Challenges to Achieving This Policy?
The most likely argument against passing LEP access legislation or enacting agency reforms will be that it will cost too much. To create an LEP access plan, train staff and potentially hire outside interpreters and translators will undoubtedly cost agencies extra money. The cost, however, is not exorbitant. In 2001, for example, California’s
Department of Social Services spent a total of $648,312 to staff an internal team of 13 employees to translate documents into various languages. This is a very small cost relative to an $18 billion budget. LEP access offices and policies can save agency resources by enabling it to more efficiently handle worker complaints and queries. Furthermore, language access is already federally mandated; if an organization receives public funding, it must make its services available to all of the public. These reforms serve to ensure that state agencies are complying with federal law.
Which States Provide for LEP Access?
In California, the amended Bilingual Services Act requires all state agencies and departments to establish a bilingual services program that develops, implements, coordinates, and monitors a departmental plan, including a procedure for accepting and resolving complaints (Cal Gov. Code §§ 7290-7299.8).
Hawaii’s LEP access law created the Office of Language Access, charged with overseeing state agencies’ development of a language access plan. The plans must reasonably accommodate non-English speakers, providing for oral interpretation and translation of vital documents when reasonably necessary (HRS §§ 371.31-371.37).
In Massachusetts, the unemployment compensation law requires that all notices and materials be available in English, Spanish, Chinese, Haitian Creole, Italian, Portuguese, Vietnamese, Laotian, Khmer, Russian, and any other language that is the primary language of at least 10,000 or 0.5 percent of all residents of the commonwealth (M.G.L.A. 151A § 62A). Maryland requires all state agencies to provide services to LEP individuals, and all vital documents to be translated into any language spoken by at least 3 percent of the
Texas and New Jersey statutes explicitly address bilingual services for Spanish-speaking claimants only (V.T.C.A., Labor Code § 301.064; N.J.S.A. § 34:9A-7.2).
Model Legislation Providing for LEP Access
Based on Hawaii law at HRS § 371.31-31.37
Oral and written language services
a. Each state agency and all covered entities shall take reasonable steps to ensure meaningful access to services, programs, and activities by limited English proficient persons, which will be determined by a totality of circumstances, including the following factors:
1. The number or proportion of limited English proficient persons served or encountered in the eligible service population;
2. The frequency with which limited English proficient persons come in contact with the services, programs, or activities;
3. The nature and importance of the services, programs, or activities; and 4. The resources available to the State or covered entity and the costs.
b. Subject to subsection (a), each state agency and covered entity provide competent, timely oral language services to limited English proficient persons who seek to access services, programs, or activities.
c. Subject to subsection (a), each state agency and covered entity shall provide written translations of vital documents to limited English proficient persons who seek to access services, programs, or activities, as follows:
1. Written translations of vital documents for each eligible limited English proficient group that constitutes five per cent or one thousand, whichever is less, of the population of persons eligible to be served or likely to be affected or encountered; or
2. If there are fewer than fifty persons in a limited English proficient group that reaches the five per cent threshold in paragraph (1), written notice in the primary language to the limited English proficient language group of the right to receive competent oral interpretation of those written materials, free of cost.
d. To the extent that the State requires additional personnel to provide language services based on the determination set forth in this section, the State shall hire qualified personnel who are bilingual to fill existing, budgeted vacant public contact positions.
Additional obligations
a. Each state agency and covered entity shall establish a plan for language access…. b. Each state agency shall designate a language access coordinator who shall establish and
implement the plan for language access in consultation with the executive director of the office of language access and the language access advisory council.