Many claimants and witnesses in workplace investigations are immigrants who do not speak or write English. Employees who are undocumented immigrants lack access to information about their rights. Unfortunately, language and cultural barriers lead to misunderstandings during investigations. Latinos make up 39% of the population in California and 16.2% of the U.S. labor market. In addition, nearly 30% of California’s population are born outside of the U.S. In California employment cases, immigration status is not relevant because: “All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state. (Civ.Code, § 3339(a); Gov.Code § 7285(a); Lab. Code § 1171.5(a)) Thus, in California, immigrant workers, regardless of their status, are covered by the same civil, labor, and employment laws that apply to the rest of the population. As the court explained in Hernandez v. Paicius (2003) 109 Cal.App.4th 452, “These statutes leave no room to doubt about the state’s public policy with regard to the irrelevance of immigration status in the enforcement of state labor, employment, civil rights and employee housing laws.” Id. at 460. Keeping the above authorities in mind, during the interview an investigator should:
1. Establish trust and rapport with the claimant or witness by first breaking the ice and asking some non-threatening questions;
2. Establish the level of language competency of the witness and obtain a translator if necessary;
3. Ensure that the translator speaks the correct dialect and is empathetic;
4. With empathy and sensitivity explain the investigative process, including confidentiality;
5. Listen to what the claimant or witness is saying, affirm, and reflect on anything the claimant/witness is saying that may trigger you to victim blame;
6. Examine any cultural bias you may have against immigrants, non-English speakers, Hispanics or other minorities;
7. Explain why you are going to ask difficult questions;
8. Ask questions in a sensitive, neutral manner;
9. Ask if any family members work with them;
10. Ask if they are experiencing any physical, mental or emotional abuse at work and if they feel they are in immediate danger;
11. Ask if they are worried about retaliation and why;
12. Do not ask about immigration status or reference it in your report.
Villegas Carrera Workplace Solutions can guide an employer through the process. Please contact Karen Carrera at firstname.lastname@example.org or at 415-989-8000 with any questions or concerns regarding how to conduct a workplace investigation that involves Latino employees. For more information on Villegas Carrera Workplace Solutions, please visit our website at www.vcworkplacesolutions.com. VC Workplace Solutions lawyers and staff are fully bilingual in English and Spanish. We are able to seamlessly conduct investigations that involve Spanish-speaking and immigrant employees. With over 25 years of experience in employment law we can serve your needs. We also provide in-person, live and video trainings as mandated by California law. Interactive two-hour manager, and one-hour employee sexual harassment prevention trainings, in English and Spanish are available to view and download. You can choose a recorded webinar on our website at www.vcworkplacesolutions.com or call us to schedule a live webinar or in-person training.
DISCLAIMER: The information you obtain in this newsletter is not, nor is it intended to be, a substitute for personal legal advice. You should consult with an attorney regarding personal legal advice specific to your own situation. Further, reading, interacting with, or reposting this email or website in any way does not form an attorney-client relationship with Karen Carrera, Esq., or VC Workplace Solutions.