Guest post Gina de Miranda, Project & Compliance Administrator, AustinHR
Providing company documents in Spanish to employees or when hiring job candidates is becoming standard practice for many employers. In concept, providing translations is praiseworthy and, in some cases, a necessity, as in a recent case in Denver where failure to provide notice or a pay cut has landed the state in EEOC litigation. Even though there are many good reasons to provide Spanish translations to employees, it is important to understand that substantial pitfalls are associated with translations when hiring. There are three major landmines that companies need to be aware of. First, literal translations of legal documents from English to Spanish can be problematic. Not only is it difficult to convey certain American legal concepts because those concepts don’t exist in many Spanish-speaking countries, but, worse, American legal terms may mean something completely different in Spanish. Secondly, documents drawn up in English and translated into Spanish may not establish the foundation of “agreement” necessary to establish an actual contract with the new job hire.
Another gotcha for Americans when it comes to translation is that all Spanish is not created equal. Big differences exist between the Spanish spoken in Mexico and that spoken in Cuba, South America, Spain or Central America. The difference is so big, that Spanish speakers don’t always understand each other. It is a situation very much like that of the United States, Britain and Australia. On the surface, it appears that all three countries speak the same language, but on the streets, their slang and ours can cause tremendous confusion. The same holds true for Spanish speakers. Each country has its own dialect, slang and, even accent, that differ markedly. The accents won’t show up in written translations, but the dialects do. What few Americans realize is that lumping all Spanish-speaking countries together is offensive. Creating a document that functions well means using standard Spanish, but also having it reviewed by someone from your employee’s country or somebody who understands the country variations.
There are other gotchas as well. What companies need to understand about translations is that for a translated document to serve its intended purpose as legal protection, that translation has to be understood linguistically and conceptually. For example, the term “indemnify” in English means to hold harmless or release from liability or blame. That concept works well in the American courts, but it doesn’t actually translate well. In Spanish, indemnizacíon is more typically used to mean “compensation” or “repair” rather than to “hold harmless.” Indemnidad is an indemnity (or insurance) against damages. Arbitraje extrajudicial is arbitration without court. Arbitraje de derecho is arbitration decided by lawyers. These terms are not the same in Spanish, South American or Mexican courts as they are in the states. The Mexican legal system derives much of its legal reasoning from French Civil Code also known as the Napoleonic code. The United States has its basis in British Common law. These are distinctly different systems. Those systems begin with the language and carry over into the philosophy of the law.
So before your recruiting specialists start using translated documents while recruiting job candidates or your company begins passing out translated documents to employees, check these things:
(1) Was the document prepared in standard Spanish and reviewed by someone conversant with the language of the intended recipients?
(2) Was the document translated directly from American legal documents? If it was, it might be a good idea to pass it by a Spanish-speaking attorney to see if it passes muster on concepts.
(3) Has the wording been checked against something like Diccionarío Juridico Español Inglés by Butterworths. This is the dictionary recommended by the Department of Labor’s bilingual task force.
For more information on the differences between American and Mexican legal systems, consult:
1. “The Introduction to The Mexican Legal System,” 3d ed. (2000), by Francisco A. Avalos from William S. Hein & Co.
2. Jorge A. Vargas. The Emerging Presence of Mexican Law in California Courts. 7 San Diego International Law Journal (Fall 2005) at 215-221.
3. Jorge Vargas, Mexico’s legal system and history http://www.llrx.com/mexicolegalsystem.htm
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