Protecting the Rights of Non-English Speaking Workers

George KennedyThe construction workforce is and has always been made up of people from all walks of life and nationalities. In many ways, the workforce has not really changed; non-English speaking workers have always been part of the U.S. workforce since the country began.

Although OSHA regulations have always applied to all workers, OSHA now makes it very clear that these regulations cover all workers, not just those who speak English. Today, a large percentage of the construction workforce is coming from Mexico and South American countries. Large numbers of non-English speaking workers are coming from other countries as well, but many of them are not entering into construction. So if you are wondering why there is so much emphasis on providing training in Spanish, just look at the statistics.

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What we are really dealing with today is the expectation that all workers will be trained to recognize and avoid unsafe conditions, and the methods and regulations applicable to controlling or eliminating the hazards. To accomplish this, employers are required to train workers in the language and vocabulary that the employee can understand. In addition, training must be specific to the type of construction work and the duties the employee will be expected to perform. For example, a worker assigned to a trenching crew must be provided with trench safety training. If a worker is expected to use a cut-off saw, then the worker must be trained to operate and use that saw safely.

Years ago, safety was not always at the forefront of business decisions. However, we are more safety conscious today, and we have to expect more out of managers and workers when it comes to safety. But before employers can hold managers responsible for training workers, the managers have to know how to recognize and avoid unsafe conditions and the applicable regulations. When dealing with non-English speaking employees, someone must speak their language to train them properly. It is no longer acceptable to hand new workers a list of rules translated into Spanish, along with a hard hat, safety glasses and a pair of gloves and send the employee off to work. Companies that still take this approach will eventually end up with OSHA citations, or even worse, be confronted with litigation.

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The OSHA Safety Training and Education standard, 1926.21(b)(2), and equivalent state-plan standards are frequently cited in the construction industry. They are also frequently used by attorneys in litigation to demonstrate to the judge or jury that an employer has neglected to live up to its responsibilities.

New workers should be informed of the company’s safety program and safety rules. It’s not enough to hand the worker a copy of the program and rules, even if they have been translated into the language they can understand. Doing this leaves the employer open to citations and litigation because there is no guarantee the worker will read it or if he or she can even read and comprehend the material. More importantly, the worker’s safety is in jeopardy. This all applies to English speaking workers, too. A better plan would be to establish a new employee orientation program taught in the worker’s language and require every new employee to attend an orientation before being sent into the field to work. It does not have to be a written test; it could be oral. Either way, the results should be documented with the employee’s name, name of the trainer and date of training. It is also a good practice to have the trainer and employee sign the documentation.

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Employers should never assume that a new worker, English or non-English speaking, regardless of experience, knows how to safely complete a task. Many experienced workers have never received safety training, especially if they come from Mexico or a South American country. Other countries’ safety regulations are often not as strict as the United States, especially regarding safety training.

Every company must determine who will be responsible for coordinating and performing safety training. Individuals performing the employees’ orientation should be well-versed in company policy, the company safety program and the information they are presenting. Each individual chosen as an instructor should be selected based on knowledge of the type of work performed, knowledge of applicable OSHA or state standards and ability to communicate the subject matter effectively.

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Not everybody makes a good instructor. Therefore, safety personnel, foremen, supervisors and others responsible for training should be trained to be effective instructors.

Employers are expected to train non-English speaking workers, and this often creates a problem. First, new employees who do not speak English well enough to comprehend the information in English must be identified. Then, the company must determine who will teach the new employees in a language they understand. The answer is to find a capable instructor within the workforce or to hire a bilingual instructor. It is also acceptable to use pre-packaged training materials such as DVDs and computer-based training. However, I would advise employers to work out a way to test the worker’s knowledge and understanding of the material.

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Workers do not want to be injured or become ill because of their jobs. They are there to earn a living, and there is considerable evidence that indicates safety training can help to reduce work-related injuries and illnesses.

There is no doubt that training and educating a nown-English speaking employee can be difficult and costly thanks to language and cultural barriers — but it is required. Everyone deserves a safe place to work and the proper training to make that happen.

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George Kennedy is NUCA Vice President of Safety.