Sunday, February 1, 2009

United States

English as “Company Language”? 

By Donald C. Dowling,
White & Case LLP

These days, multinational headquarters proactively use intranets, e-mail and all-employee distributions to issue global employee communications to employees worldwide, often in English. For example, multinational headquarters post English-language global HR policies, codes of conduct and whistleblower hotline communications on company intranets, and distribute compensation/benefits documents in English. 

To facilitate headquarters-issued global employee communications, some multinationals even some headquartered in non-English-speaking countries go so far as to designate English their “official company language.” After all, English fluency is vital in today’s globalized business world.

Unfortunately a multinational’s designation of English (or some other language) as “official company language” is for the most part legally meaningless. Employers must comply with language laws everywhere they operate. Even if English were a viable lingua franca for business (and in many respects it is not; most people worldwide, including many business leaders, do not speak fluent English), there are three legal doctrines blocking worldwide English-language employee communications: (1) flat prohibitions (2) enforceability barriers (3) local courts.

1. Flat prohibitions: 
France, which sponsors an academy upholding the integrity of the French language, has a statute called Loi Toubon that in effect commands French employers “Thou Shalt Communicate with Thy Local Employees Exclusively in French.” In 2006 a US Fortune 10 multinational got fined US$800,000 (halved on appeal from US$1.6 million) for a violation, after its headquarters had issued English benefits documents to France employees.

Quebec and Belgium have similar laws. Belgium’s grows out of the uniquely Belgian tension between Flemish/Dutch and Waloon/French; Quebec’s permits some employee opt-outs. In Spain, “Autonomous Communities” require certain communications in the local co-official language (such as Catalan or Basque).

2. Enforceability barriers: 
But most countries do not actually fine employers for issuing communications in a foreign language. More common is a second tier of countries imposing rules that render foreign-language communications void. In these countries (e.g., Chile, Poland, Russia, Vietnam), English-language employment documents could be per se unenforceable.

Further, Costa Rica, El Salvador, Guatemala and Honduras impose laws that invalidate work rules not in Spanish. Other countries (e.g., Mali, Mozambique, Nicaragua, Ukraine) affirmatively require that employment agreements be in local- or dual-language format.

3. Local courts: 
In countries not in the previous two categories, local statutes tend not to regulate the language of employee communications. But outside the English-speaking world English-language communications, even where not per se illegal, are not readily enforceable in local proceedings.

To understand the dynamic here, imagine the reverse. Think of Toyota’s auto plant in Georgetown Kentucky. If Toyota headquarters in Japan issues a global code of conduct in its language—Japanese—and later disciplines a Kentucky worker for violating the code, no Kentucky judge would hold the Kentucky worker responsible for reading Japanese.

Outside the U.S. this issue arises even before a dispute gets to court. Certain employer policies/plans must be notified to local agencies or local employee representatives (trade unions, works councils, health/safety committees). In Haiti, Panama, Peru, Niger and elsewhere, laws require employment agreements be filed with local agencies—in the local language. To get filed, policies and plans in English will usually need to be translated.