Having limited English-language skills is a daunting disadvantage, especially in today’s job market.  It can severe limit your job options, and makes the possibility of misunderstandings in the workplace a paramount concern.  What happens if your lack of English skills places your job in danger? 

            A decision came out recently that should be encouraging to those who speak only limited English.  Jan Anderssen (not his real name) was a production worker at a company where employees were prohibited from working under the influence of alcohol.  If a supervisor reasonably believed an employee was under the influence, it was typical procedure for the employer to use a saliva-swab test.  In the event of a positive test, the employee would be taken to a hospital and a Breathalyzer test would be administered to confirm the first test.

            Mr. Anderssen showed up to work on March 25th, and his co-workers thereafter reported to a manager that he smelled of alcohol.  The manager told Mr. Anderssen to go into an office, and Mr. Anderssen asked why.  The manager said something Mr. Anderssen didn’t understand, and said he would explain in the office.  Mr. Anderssen expressed that he needed an interpreter but the manager did not provide one.  There were three supervisors and a human resources representative waiting in the office.  The manager started to explain about the alcohol test, but Mr. Anderssen, who had been experiencing stomach pain, did not understand.  Mr. Anderssen asked to use the bathroom, but was told he could not do so until after the test.  He insisted on using the bathroom, and a supervisor accompanied him to the bathroom and waited for him.  But in the meantime, the manager and supervisors took Mr. Anderssen’s not submitting to the alcohol test to be a refusal, and decided to discharge him.  It was not until Mr. Anderssen was waiting n the lobby that his shift supervisor managed to explain to him what had happened.  At that point, Mr. Anderssen agreed to submit to the test, saying that he hadn’t been drinking, but was refused, because he had gone to the bathroom.

            Mr. Anderssen applied for unemployment benefits and was denied.  He appealed, and on June 2nd, Administrative Law Judge Steven A. Wise issued a decision.  The question before him was simply whether Mr. Anderssen was discharged for work-connected misconduct.  Judge Wise concluded that the basis of the alleged “misconduct” was a willful failure to submit to an alcohol test—but also that because of the language barrier, Mr. Anderssen had not willfully failed to submit to the test.  Because of this, the Judge found that he hadn’t committed misconduct after all.

            This case doesn’t mean it’s okay to show up drunk to work, and it doesn’t mean it’s a good idea to not learn your co-workers’ language.  What it means is that, under Iowa unemployment benefits law, you won’t be held responsible for an act of misconduct when you didn’t know it was misconduct because of a language barrier.  It’s still a good idea to get a lawyer.  I like to say to my clients, "Help me to help you."  If we can help you, call the Lombardi Law Firm to speak with attorneys Steve Lombardi and Katrina Schaefer. We can be reached at 515-222-1110 or by emailing us at [email protected] and [email protected] We look forward to your call.

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