Dental Tribune U.S. Edition

A5Dental Tribune U.S. Edition | January 2013 only rules in dental practices may be much greaterthantheneedforsuchrulesinlarge corporations, because dental practice own- ers have fewer employees and resources. The safety and productivity of dental practices are uniquely tied to their employ- ees, in contrast to large employers. Because there are so few employees in a dental practice, lack of communication can be detrimental to the output of the practice. Because each case requires an in-depth, fact-based analysis to determine business necessity, dentists should consult a quali- fied attorney before implementing an Eng- lish-only rule within their practice. Applying the law to dental practices Dental practice owners who have a justifi- able business necessity for an English-only rule may be prevented from enforcing the rule because of their inability to bear the financial burden of litigation. The financial constraints on dentists are unfortunate, because situations often arise withintheirpracticesthatcouldjustifyuse of an English-only rule. Unlike large cor- porations, practices often: (1) require their employees to work closely together; (2) do not have access to resources that would allow them to deal with a variety of lan- guagesinthesameworkenvironment;and (3) cannot transfer or discipline employees easily. Therefore, the business necessity test should be handled differently when applied to a dental practice. The business necessity test can be sum- marized as a determination of whether the English-only rule is necessary for the safe and efficient operation of the practice. The business purpose must be important enough to override any racial impact; the rule must carry out the purpose that it purportedly serves; and there must be no acceptable alternative practice that would better accomplish the business purpose advanced, or accomplish it equally well with less racial impact. The main issue is whether the English-only rule is necessary for the continued viability of the practice. Courts use six factors to justify an Eng- lish-only rule in the workplace, which are: (1) worker safety; (2) ensuring effective supervision; (3) increasing the productiv- ity and efficiency of the business; (4) pro- moting worker harmony; (5) improving customer relations and satisfaction; and (6) improving an employee’s English skills when English is not their primary lan- guage. While each of these justifications may be somewhat relevant for dental prac- tice owners, the most useful justifications are discussed below. When English-only might be OK First, courts have upheld English-only rules implemented to ensure effective supervi- sion. Several courts have found that busi- ness necessity justified rules to ensure that English-speaking supervisors could under- standwhatwasbeingsaidintheworkplace. Effective supervision is extremely impor- tant in a dental practice. The dentist’s ultimate business goal is to run the practice productively and effi- ciently, and dentists must be able to under- stand the employees to do so. If employees are speaking about work-related topics, the dentist has an interest in asking them to speak English to ensure that they are not misguiding each other. If employees are speaking about personal topics, the dentist has an interest in asking them to restrict that speech to lunchtimes and breaks, no matter what language they speak. Second, courts have upheld English-only rules implemented to increase the produc- tivity and efficiency of the business, which closely ties into the effective supervision factor. An English-only rule may increase a den- tist’s productivity because it ensures that work conversations are carried on in a lan- guage that everyone can understand. The issue is whether there is more disruption to the work environment with or without the English-only rule. This is a persuasive argu- ment. Hostility among employees can neg- atively affect the productivity and efficien- cy of the practice. Creating an English-only rule may increase productivity for dentists because all the workers would understand each other. Third, courts have upheld English-only rules because they promote worker har- mony. Dentists or employees who speak only English may feel threatened, isolated, and/or alienated by non-English speakers. This factor is extremely important when dealing with dental practices. Courts have upheld the use of English-only rules to avoid isolation or alienation of employees who only speak English. Rather than creat- ing an atmosphere of inferiority, isolation, and intimidation, these rules can actually alleviate an atmosphere of racial tension. While English-only rules cannot be justi- fied by fear and prejudice, dentists have a legitimate interest in ensuring that their employees are not making derogatory comments about each other, either as ha- rassment or basic ill will. Finally, a fourth justification for the busi- ness necessity of an English-only rule is to improve customer relations and satis- faction. Dentists usually have no trouble justifying a rule requiring employees to speak English with English-speaking pa- tients. However, dentists cannot discrimi- nate based on a patient’s fear or prejudice. Depending on the patient base, it may improve patient relations to implement an English-only rule. A patient may feel in- timidated if he or she cannot understand what workers are saying. Because patients who primarily speak foreign languages may be comforted by the use of languages other than English, courts have held that improved customer relations are in and of themselves insufficient to justify business necessity. Conclusion While dental practice owners may have le- gitimate business justifications for imple- menting an English-only rule, it is very important for the practice owner to un- derstand the possible legal ramifications of such an action. Because this area of law is relatively un- developed, it is strongly recommended that any practice owner who is considering implementation of such a rule seek advice from an attorney who is familiar with em- ployment law. Ad PRACTICE MATTERS