Issue 43

Zatuchni & Associates Newsletter

ON THE REGULATORY FRONT

New Tax Law Contains Employment Related Provisions

The Economic Growth and Tax Relief Reconciliation Act of 2001, enacted into law on June 7, institutes additional tax breaks to companies that offer tuition assistance and child-care facilities or referrals to employees. The Act also contains more than 60 items affecting employer sponsored pension plans.

Tuition Assistance - The Act permanently extends the tax exclusion for educational assistance provided by employers under Section 127 of the Internal Revenue Code. The $5,250.00 per employee annual exclusion also now applies to graduate as well as under-graduate coursework.

Child Care and Referral - The Act provides tax credits to employers that provide child-care facilities and referral services to employees. The tax credit equals 25 percent of the employer's qualified expenses for maintaining a child-care center.

The Act further includes numerous new provisions pertaining to 401(k) and other types of retirement plans. These provisions affect portability, IRA contributions, tax credits, etc. For a summary of these provisions, please contact us at the above number or e-mail.

RECENT CASES

Bilingual Employee May Be Discharged For Failure To Comply With Employer's English-only Rule

An employer can impose an English-only or English-mainly rule on employees that are bilingual without violating the New Jersey Law Against Discrimination ("LAD"). So held New Jersey's Appellate Division recently in Rosario v. Cacace, 337 N.J. Super. 578 (App. Div. 2001).

Plaintiff Gisela Rosario worked as a secretary/medical assistant for a urologist who had a largely Spanish-speaking clientele. Ms. Rosario was hired in part because she was bilingual and was fluent in both Spanish and English. Since the office manager of the practice could only speak English, part of Ms. Rosario's job duties included translating for the manager in dealing with Hispanic patients.

Although Ms. Rosario was expected to speak Spanish when assisting clients, the office manager objected to Ms. Rosario speaking Spanish in the office to co-workers at others times. After Ms. Rosario was terminated from her job, she brought suit under the LAD for national origin and ancestry discrimination.

In analyzing whether English-only rules are discriminatory, the court adopted the reasoning and language of federal appeals courts that have decided the issue. "If the employer engage a bilingual person, that person is granted neither right nor privilege to use the language of his personal preference." In short, if an employee is able to speak and communicate in English, the employer can compel him or her to do so on the job.

Notwithstanding the court's ruling, employers should still take caution when implementing workplace language policies. Although not per se unlawful, the court made clear an English-only rule would be discriminatory if an employee can prove with evidence the policy was merely a "surrogate" for discrimination on the basis of national origin or ancestry. (In Rosario, the court found there was no factual evidence this was the case.) Additionally, although an English-only rule can be imposed on bilingual employees, this is not necessarily true with respect to non-English speaking workers. "The refusal to hire applicants who cannot speak English might be discriminatory if the jobs they seek can be performed without knowledge of the language."

Disclaimer

The information contained in this Newsletter does not constitute legal advice. Zatuchni & Associates, LLC tries to provide quality information, but we make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein. As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent counsel.