52. What Is DUA's Obligation to Claimants Who Don't Speak English?
DUA and the Career Centers have a legal obligation to provide equal services to claimants who have limited English proficiency (LEP). 68 Fed. Reg. 32290 (May 29, 2003) codified at 28 C.F.R. 42.101–42.412 (Department of Labor regulations implementing the Title VI prohibition against National Origin Discrimination Affecting Limited English Proficient Persons). To achieve this goal, DUA should communicate with LEP claimants in their primary language whenever possible (and always when required by law). However, the reality is that outside of the DUA hearing process, discussed below, the agencies have not sufficiently addressed services to LEP clients. We strongly encourage advocates to monitor the treatment of LEP clients throughout the entire UI process.
Moreover, the Executive Office of Labor and Workforce Development Language Access Plan—revised in December 2012 and promulgated under Governor Patrick’s Executive Order 526, “Improving Access to Services for Persons with Limited English Proficiency”—governs all EOLWD departments, including the Department of Career Services and requires a plan that ensures “meaningful access” to all programs, services and activities. This plan can be found online at www.mass.gov/governor/docs/oao/eolwd-lap-6-2013-final.pdf (last visited in 2012).
DUA modified its regulations concerning interpreters, 430 CMR 4.16–4.20, deleting the regulation that required individuals to bring their own interpreters to the Career Centers, § 4.19. Sections 4.16–4.20 are now silent on the use of interpreters at interviews and Career Centers, but make clear that DUA continues to bear the burdens of (1) providing an interpreter at hearings, and (2) explaining a claimant’s right to a stay of the hearing if the claimant needs an interpreter but does not have one.
Although DUA regulations do not address the use of interpreters at Career Centers or at any stage of the UI process other than hearings, federal law may still require that claimants have access to interpreters. 29 C.F.R. 31.1, et seq.; 68 Fed. Reg. 32290 (May 29, 2003) (Department of Labor policy guidance regarding federal financial assistance recipients’ obligations to persons with limited English proficiency.)
Identification of a Claimant’s Primary Language
Under both federal and state guidelines, “limited English proficiency” (LEP) refers to an individual’s limitations in reading, writing, or oral communication in English. The question to be asked is, “What is the person’s primary language?”—not whether the person has some English skills. The Secretary of Administration and Finance (ANF) addresses this issue when discussing ANF Administrative Bulletin #16: A limited-English-proficient person is someone who is not able to speak, read, write, or understand the English language at a level that allows effective interaction with agency staff. Office of Access and Opportunity, Admin. Bull. No. 16, Language Access Policy and Implementation Guidelines (2015.) available at https://www.mass.gov/administrative-bulletin/language-access-policy-and-guidelines-af-16. Most often, an LEP claimant first contacts DUA when filing a claim for UI benefits. The claims-taker must enter into the UI system whatever language the claimant names as primary, even where the claimant may be able to communicate effectively in English. Advocates with LEP clients should inform DUA of their client’s primary language. DUA has created an email address -- LanguageChange@detma.org – for advocates to inform DUA of their claimant’s primary language. Advocates should include a release when emailing.
Oral Communications with the Claimants
All oral communication should be in a claimant’s primary language unless the claimant has specifically directed otherwise. When the claimant has identified a primary language other than English, DUA staff may not decide on their own that the claimant’s English-speaking ability justifies communicating in English.
A DUA employee who speaks the claimant’s primary language should be used whenever possible to communicate with the claimant. When such a staff member is not available, DUA staff should use the telephonic interpretation service at 1-888-898-7621.
DUA should not allow a claimant’s child to interpret for the claimant. Children generally are not trained interpreters. Also, the issue about which the claimant is in contact with the agency may involve sensitive and explicit subject matter, such as domestic violence, separation from work due to sexual harassment, etc. It is particularly inappropriate to engage in these types of conversations with minors. Moreover, Administrative Bulletin #16, “Languages Access Policy and Implementation Guidelines, 2015,” specifically prohibits the use of minor children as interpreters. Office of Access and Opportunity, Admin. Bull. No. 16, Language Access Policy and Implementation Guidelines (2015.) https://www.mass.gov/administrative-bulletin/language-access-policy-and-guidelines-af-16. The relevant section of the Bulletin states, “Agencies should refrain from using family members or friends to provide interpreter services; and, in no event shall an agency allow a minor to provide interpreter services.” Id. at 6.
Translated Materials and Good-Cause Protections
The UI statute specifically requires that DUA “issue all notices and materials in English, Spanish, Chinese, Haitian Creole, Italian, Portuguese, Vietnamese, Laotian, Khmer, Russian and any other language that is the primary language of at least 10,000 or one half of 1% of all residents of the commonwealth. G.L. c. 151A, § 62A (d)(iii). DUA has agreed to an expanded interpretation of the statute and maintains that “Although DUA is not obligated to translate notices into languages not specified in § 62A (d)(iii), DUA will apply this good cause policy to all LEP claimants.” AH c. 1, § 4E (emphasis in original). Whenever DUA fails to issue a bilingual notice in the claimant’s primary language and the claimant credibly represents to DUA that DUA’s failure resulted in the claimant’s failure to meet a deadline or requirement, the division’s omission shall constitute good cause for the claimant’s failure.” 430 CMR 4.13(4); see also Note 2, below.
Luciano v. Malmborg, Director of the Div. of Unemployment Assistance, Suffolk Superior Court, CA No. 07-4285C, 2008, a lawsuit challenging DUA’s failure to provide LEP claimants with notices in their primary language, was settled by agreement in December 2014, available at https://www.masslegalservices.org/system/files/library/Luciano2014.pdf. Under the agreement, DUA created a separate Multilingual Services Unit that trains staff in LEP issues; translates all DUA notices into the nine languages mandated under the statute (some of these notices are already being translated); and periodically reviews the percentage of people who speak or read a language, and translates all notices into any language spoken by at least 10,000 residents in the state; further, DUA’s performance on LEP issues are monitored by plaintiffs’ counsel, Brian Flynn, Greater Boston Legal Services, firstname.lastname@example.org.
Under UI Online, claimants are required to submit numerous questionnaires. These questionnaires are all in English but as part of the Luciano settlement DUA issued a translated cover sheet in all covered languages. The translated cover sheet informs claimants that they can receive assistance completing the questionnaires in two ways. Each cover sheet has a separate DUA phone number for the specific language the claimant speaks to call DUA to have the questionnaire completed over the phone. When an LEP claimant calls, DUA is required to complete all outstanding questionnaires. Claimants can also send in the cover letter asking for DUA to call them to complete the questionnaire.
The telephone system has separate designated language lines. The toll-free telephone numbers for 11 languages are as follows:
Haitian Creole 855-697-3046
These numbers may change, so most reliable number is the number provided by DUA on the questionnaire after a claimant has identified their primary language.
It is very important for advocates to monitor the effectiveness of this system. LEP claimants should not have unduly long wait times and all outstanding UI questionnaires should be completed at the time of the call. If you have LEP clients who experience problems with this system, please contact Greater Boston Legal Services at 617-371-1234.
A DUA regulation at 430 CMR 4.13(4), (2/19/10), extends the appeal period in certain instances involving LEP claimants. The regulation provides that a claimant whose preferred language is among those listed in G.L. c. 151A, § 62A(d)(iii), who did not receive a determination in that language, and whose reason for not filing a timely appeal was that the determination was not written in the claimant’s preferred language has an indefinite time to appeal.
The language rights provisions at G.L. c. 151A, § 62A(d)(iii) include not only the ten listed languages (English, Spanish, Chinese, Haitian Creole, Italian, Portuguese, Vietnamese, Laotian, Khmer, Russian) but also “any other language that is the primary language of at least 10,000 or ½ of 1% of all residents in the commonwealth.” DUA has recently added Korean to this list. Additionally, DUA provides assistance to LEP callers in any language by utilizing a multilingual AT&T language line. However, as that is accessed through 617-626-6800, a line that starts with an English introduction that goes on for half a minute followed by prompts in Spanish and Portuguese only, assistance is often required to access multilingual assistance.
As part of the compliance with the Luciano settlement agreement, the DUA issued a good-cause policy for LEP claimants. The good-cause policy (available here at https://www.masslegalservices.org/content/uipp-201306-good-cause-policy-...) made improvements over prior practice, as follows:
- It clarifies that good cause is applicable to all LEP claimants, regardless of whether the claimant’s primary language is listed or provided for under the unemployment statute;
- It clarifies that good cause is not limited only to late-filed appeals, but to other issues as well;
- It clarifies that LEP status is established by self-identifying as such and is not subject to second-guessing by DUA staff;
- It clarifies that under 430 C.M.R. § 4.13(4) in the Luciano settlement, if an LEP claimant does not receive a notice in her primary language and she files a late appeal within 60 days, the appeal is accepted unconditionally. However, appeals filed after 60 days should be accepted unless DUA has information that the claimant knew about the deadline but filed late for a reason unrelated to LEP status; and
- If good cause is denied, DUA must put the reason in writing; if it fails to do so, the denial will be overturned. DUA must state the reason for denial in the notice of denial provided to the claimant. Although not part of the official policy, DUA has agreed to review any good-cause denials brought to their attention that advocates believe do not conform to the policy.
“Good cause” includes, but is not limited to, the following situations:
- Allegations of fraud based upon unreported earnings; and
- All UI recipients, including LEP claimants, are required to report their earnings. Although ignorance of this obligation does not excuse noncompliance, before an “at-fault” finding for not reporting earnings may be made, an inquiry is needed to determine whether the claimant’s inability to understand or communicate in English led to the failure to report earnings. If it did, then an at-fault finding should not be made. In accordance with G.L. c. 151A, §25(j), a compensable week penalty can never be imposed upon a claimant who did not have actual notice of the reporting requirement that complied with G.L. c. 151A, §62A(d)(iii). See AH c. 9, § 5D; c. 1, § 4F.AH
- Predating a UI claim.
- Good cause for predating a UI claim shall be found when a claimant credibly states that the late filing resulted from the claimant’s limited English proficiency. However, the claimant must demonstrate having taken reasonable actions to find out how to file a claim. AH, c. 2, § 2C.
Despite requirements that interpreters be provided at all stages of the UI process, currently, DUA provides interpreters for claimants at no charge only at hearings, including hearings before the Board of Review. For hearings outside of the Boston area, DUA sometimes uses telephonic interpreters.
The DUA Hearing
DUA’s Hearings Department automatically arranges for an interpreter when the local office has indicated that the individual has a language barrier or when the individual or her advocate requests an interpreter; however, double‑check with the Hearings Department at 617-626‑5200. An interpreter‑assisted hearing is automatically scheduled for 1.5 hours. A review examiner is required to ask, during the hearing, whether the claimant is able to understand the interpreter. The review examiner’s obligations are set out in DUA regulations at 430 CMR 4.20 (3),(5),(6). Advocates should direct any problems with the qualifications of the interpreter to: Marisa de la Paz, Director of DUA’s Office of Multilingual Services, at 617-626-5471.
If the review examiner observes during a hearing without an interpreter that an individual cannot effectively communicate in English, the claimant has a right to a stay of the hearing for the purpose of securing an interpreter. 430 CMR 4.20(3).
LEP Rights Outside of the Hearing
In addition to the hearing process, claimants must be informed of their right to have interpreter assistance:
- at the claims level, and
- at the MassHIRE Career Centers (430 CMR 4.16–4.20).
To improve services to LEP claimants. DUA has agreed to the following changes:
1. To provide interpreters at the initial claim determination;
2. To provide seminar information in the nine statutory languages under G.L. c. 151A, § 62A.
3. To approve ESOL (and Basic Skills) to facilitate training. AH c. 11, § 6B.1.
UI Online Services and LEP Claimants
Currently, UI Online is an English-only system, which makes accessing UI benefits more difficult both for LEP claimants and for claimants who are not computer-literate or have limited access to computers. DUA is statutorily mandated to provide some level of in-person access in various locations across the state. G.L. c. 151A, §§ 62A (a)–(c). Currently, only Boston has a walk-in UI dedicated office. Around the state, UI advice is provided by UI Navigators through MassHIRE Career Centers. (See Appendix A).
For LEP claimants who walk in to apply for UI Online, DUA must provide either in-person interpretation or direct them to telephone interpreters. For ongoing weekly certification of eligibility, English-speaking claimants may use UI Online or certify by telephone. Additionally, TeleCert is available in Spanish and Portuguese. Claimants who speak languages other than these three must wait until the system connects them with an adjudicator, who then uses the multilingual AT&T language line. For more information on TeleCert, including the questions most frequently asked, and for translations of these questions in nine languages, see: https://www.mass.gov/how-to/request-weekly-unemployment-benefits (and see language selection prompt on top of page).
Note: We urge advocates to make certain that DUA has implemented these above changes for their LEP clients and to review the Department of Labor regulations for additional advocacy handles. To ensure that claimants are protected under the changes brought about through the Luciano case, your client should be designated as LEP. Contact DUA at email@example.com or the Multilingual Services Unit at 1-888-822-3422. For further information about the rights of LEP claimants, contact GBLS at 617-371-1234.