The Witness Who Doesn't Speak English
Tips for interviewing and presenting as a witness
Workplaces that employ non-English speakers need to be mindful that their work practices and grievance handling procedures address language barriers. I’ve had several cases where language differences were a critical component of the miscommunication that led to someone’s discharge.
Optimally, unions and employers would work out ahead of time how non-English speakers and their monolingual English-speaking supervisors will interact during work. For example, there should be an agreed-upon employee who can translate orders and questions and the non-English speaking workers should have access to that person if they don’t understand their supervisor, manager, or co-worker. That’s the best case scenario, of course.
I’ll leave it to others to propose other methods of “shop floor” communication. I want to talk about how to do an investigation involving a non-English speaking employee. In one case, a supervisor who had a decent understanding of one Chinese dialect provided testimony about the statement of an employee who spoke a different Chinese dialect. Naturally, there was a question about whether the employee had said something offensive or not. The investigator did not ask any questions about the employee’s understanding of the phrase she used, and based discipline on her statement. At the hearing, several employees who spoke Chinese, but had not been interviewed by management, agreed that the phrase was benign and no worse than profanity used by a manager who spoke English.
A similar incident arose when an nursing home aide was accused of patient abuse for calling her patient “bruja,” which a manager believed meant “bitch.” The patient’s family member testified that they, the patient, and the aide understood the word to be an affectionately used term meaning “witch.” The context was that the aide wanted to comb the patient’s hair, and the patient responded with laughter, according to a nurse who had witnessed the interaction.
In another case, a grievant was asked in Spanish about a safety incident. The questioner (who was not a supervisor) assumed the grievant was at fault and wrote a statement about the incident in English, which the grievant then signed, unaware of its contents. The grievant was not invited to provide a statement in Spanish.
So what’s the best way to interview a non-English speaking witness?
The witness should write their own statement in the language they are most comfortable using, and the parties should have the statement translated.
If the witness is not able or available to write their own statement, another speaker of that language should transcribe the witness’s statement, and read it back to them, before having the witness sign it. The statement can then be translated by the parties.
The parties should try to identify a mutually agreed-upon translator to participate in any questioning. If they are not able to mutually agree on someone, then each party should have a representative who speaks that language, so they can check one another’s translation.
Other witnesses who speak the language should be interviewed if they have firsthand knowledge of the events, and their understanding should be documented along with their observations if their observations are going to form the basis of discipline.
When a grievant doesn’t speak English, the parties should ensure that there is a translator available at each step of the grievance procedure, and particularly at arbitration. In the case involving the Chinese speaker, there were Chinese and Spanish translators available for the grievant and witnesses. It was somewhat challenging but because we used professional interpreters, they were able to make it go smoothly and the evidence elicited was very useful for the case. I’ve had particular success with interpreters who know how to use the interpreter functions of Zoom video-conferencing software. On the other hand, I’ve also had success with union representatives provide translation for the grievant, when the employer mutually agreed to their use.
Non-English speaking employees are not harder to interview or use as witnesses if the employer and the union have some foresight about handling these issues before misconduct occurs.