November 12, 2018 § Leave a comment
I recently learned that some federal district courts got involved in the way federal prosecutors pick their interpreters for hearings. I have practiced in federal court for many years, and the decision on who will interpret for the office of the United States Attorney has always been left to the prosecutors who know the case better than anybody else. This means they, and their prosecutorial team of paralegals, investigators, detectives, and law enforcement agents, know the language complexities of a particular case, and therefore, better equipped to decide who they need for that interpreting assignment.
I do not dispute that some districts, because of a lack of federally certified court interpreters, or out of plain ignorance, have never tried a case where the assistant U.S. attorneys (AUSA) have their own interpreters for a trial. Some districts are so small, the AUSA office does not even have a staff interpreter. Some districts are so remote, that even the court tries cases with unqualified court interpreters (usually certified or accredited at the state level) because it is next to impossible to get somebody to the courthouse. Evidentiary hearings and trials require that an interpreter be physically present at the hearing. Remote interpreting is not a viable option for these proceedings.
That some have always followed this practice does not make it right, and courts in districts in urban centers where federally certified court interpreters are available have no reason to inject themselves in what should be an internal process of the Department of Justice. Let me elaborate:
The American legal system, and all legitimate legal systems in the world, are based on an independent judiciary free to decide with no pressures or fear of retaliation. The United States Constitution recognizes and enshrines this principle through the separation of powers. The Executive Branch of the federal government originates from Article 2. The Judicial Branch stems from Article 3.
With administration of justice in a criminal case, all individuals in the United States have the rights and protections established by the Constitution and secondary legislation; mainly, the right to a public and fair trial by their peers, starting with a presumption of innocence, charging the Executive Branch of government, through the United States Department of Justice, with the burden of proof, beyond reasonable doubt, in an orderly regulated process, presided by and controlled by the Judicial Branch of government. To put it simply: Because the government cannot be judge and party, it is an agency from outside the Judicial Branch, in this case the Justice Department, who prosecutes the case on behalf of the U.S. government, including the citizens that the government must protect from the bad guys.
We can see that having the burden of proof is no small task. Federal prosecutors must investigate de facts, test and evaluate the evidence found, and prepare a case that will persuade the jury and judge of an individuals’ guilt beyond reasonable doubt. If successful, the Justice Department will meet its duty to protect society. This is no easy task; it also means that individuals will lose their assets, their freedom, and even their life. A prosecutorial team must have the best team available to fulfill its function, and that is extremely difficult.
Federal prosecutors must call witnesses to testify in the trial. When these witnesses do not speak English, their testimony must be interpreted into English to benefit the defendant, the defense attorneys, the judge, and the jury. It is only then, after the rendition of the interpretation, that the defendant will have exercised his constitutional right to confront the witness or accuser. It only after the rendition that a judge or jury can assess the credibility of the witness. It is this time they will decide if they believe all, part, or nothing of the witness’ statement.
But most of the work is done before the witness steps in the courtroom and takes the stand. Prosecutors and their teams test, evaluate, and prepare their witnesses before a trial. Questions are asked many times, in many ways; adjustments are made. Not to influence testimony, but to present the truth clearly to the trier of fact (judge or jury). Usually the testimony of the witnesses for the prosecution is very complex, specialized, scientific. Dense concepts and sophisticated terminology must be interpreted into English during the trial; cultural concepts must be clarified before the final rendition (many expert witnesses come from abroad just for the trial); legal systems compared so the accurate term in the target language is rendered by the interpreter. Leaving loose ends is not an option: The prosecution must prove, and the standard could not be any higher: beyond reasonable doubt. Prosecutors and their teams, assisted by the interpreters, go over the testimony with every witness as many times as needed. These interpreters must research, study, practice, develop a common glossary for each testimony. The witness gets used to that team of interpreters and the interpreters get used to the witness.
The interpreters for the prosecution know the case, they are familiar with names, dates, places, and other key information that must be interpreted with accuracy. From gang slang, to amounts of drugs, to family relationships. It all needs to be well-understood so the interpretation heard in trial is accurate, pristine, and truthful.
Confidentiality is essential to our justice system. It lets the parties tell the truth to their attorneys so they can represent, in a criminal case, a defendant or society with full knowledge of the facts. Confidentiality is also very important when it comes to the lawyers’ strategy. Prosecutors and defense attorneys develop a strategy to win a case. The interpreters for the prosecution know the strategy and facts, and they are covered by the veil of secrecy. Using a court appointed interpreter to interpret for the prosecution generates a conflict of interest. You cannot be judge and party simultaneously. Even the most professional, trustworthy interpreters should never be placed in such situation. The sole appearance of conflict is enough to cast a shadow on the proceedings. Client-attorney privilege only exists when there is an expectation of privacy. How could this be argued when the same interpreter hears all confidential details?
The independence of the prosecutorial interpreters is so important, that even their payment differs from that court appointed, public defender, and Criminal Justice Act (CJA) attorney interpreters receive. I am not referring to staff interpreters, I am talking about independent contractors retained to work in a case. While interpreters for the court, public defender, and CJA attorneys are paid through the judicial system (Judicial Branch of government) interpreters for the prosecution are paid by the United States Department of Justice (Executive Branch). The funds come from different budgets to assure independence, absence of conflict of interests, and separation of powers. The Office of the United States Attorney pays better that the courts, and unlike the latter, fees are negotiable between the parties (interpreters and AUSAs). This can also be relevant if you think that most more experienced, better trained interpreters would rather work for the prosecution, leaving a smaller pool of top-level interpreters to work for the courts, and increasing the risk of an inaccurate rendition of a prosecutorial witness’ complex testimony during the trial.
The widely, and constitutionally backed, practice of having a separate interpreter team for the prosecution in federal cases must continue as long as we have separation of powers, and a system where one party has the burden of proof. There is no rational justification for this practice by the executive branch of government, to be changed by court staff, from a different branch. Such decisions are being made in courthouses where none of the issues above were given any thought, where prosecutors did not reflect on the implications of such changes, and a decision was unilaterally made, perhaps due to a lack of understanding that lead to this policy deprived of common sense. If the decision at these district courts was made unilaterally, we have a separation of powers issue; if it was decided for monetary reasons, remember that interpreter fees are paid from two budgets (executive and judiciary); if it was decided to avoid comparisons between experienced prosecutorial interpreters, and perhaps less qualified court appointed ones, it was motivated by unethical reasons and it shows a disappointing level of professionalism; and if this was a joint decision by the courts and AUSAs in some districts, they must address the conflict of interest and at the least the appearance of conflict.
Our legal system has been around for 250 years. It has organically adjusted its parts to observe the fundamental democratic principles, starting with an independent judiciary, a separation of powers, and the rights and protections to the individual and society. In today’s world where many things that were, are no longer, let’s hope this is not changed by the capricious decision of a few. I invite you to share your thoughts on this issue.
October 31, 2018 § Leave a comment
Dear friends and colleagues:
Every year, Halloween is celebrated in more countries around the world and the interpreters’ booth is no exception. During the last week of October our conversations between assignments turn to traditions from our different countries, and many include food. I have been fortunate to try many wonderful dishes served during this season in different corners of our planet, and I thank my many friends, colleagues, and even clients who have contributed to my cultural-culinary education. This is a list of some of the most popular, and tastier Halloween foods, that came from other nations and traditions to the United States:
Pan de muerto (Mexico). Traditionally baked in the days leading to the Day of the Dead (Día de Muertos), ‘bread of the dead’ is a soft, sweet bread roll. It’s sometimes decorated with bone-shaped dough on top and is eaten in Mexican homes and next to a loved one’s grave to celebrate their memory. Depending on the region, it can also be flavored with orange-flower water, anise seeds or other ingredients.
Pão-por-Deus (Portugal). Pão-de-Deus (‘bread of God’) or Soul Cake is a small, round treat. People usually eat it on All Saints’ Day (Dia de Todos-os-Santos) on 1 November. The ingredients are: raisins, currants and spices such as ginger, nutmeg and cinnamon. In Portugal, people give pão-de-Deus to children and the poor, who go from door-to-door singing and saying prayers for the dead. Soul cakes are also shared in other countries. Some say this practice might be the origin of trick-or-treating.
Dolci dei morti (Italy). Often called fave dei morti (‘beans of the dead’), Italian families eat these little chewy biscuits on All Souls’ Day (Commemorazione dei defunti) on 2 November. The ingredients: Ground almonds, pine nuts, cinnamon and lemon zest.
Huesos de santo (Spain). Long, white, tube-shaped ‘saint’s bones’ are made from marzipan (an almond paste). Spanish people eat them around All Saints’ Day or Día de Todos los Santos. Expect various fillings and plenty of syrup covering them.
Candy apples (United States) / Toffee apples (United Kingdom). Although store packaged candy has taken over in America, perhaps the most well-known traditional Halloween snack is the candy apple (in the US) or toffee apple (in the UK). The apples have a sugar syrup coating, sometimes with an extra layer or nuts or other sweet decorations.
Guagua de pan (Ecuador). These “bread babies” are sweet rolls molded and decorated to look like small children. They are part of the Day of the Dead tradition, often made of wheat and sometimes filled with sweet jelly. They may be exchanged as gifts between families and friends or used ceremonially.
Soul cakes (England). These sweet, round cakes were traditionally given out in England and Ireland on All Saints Day or All Souls’ Day during the Middle Ages to those who went door-to-door saying prayers for the dead in what may be the forerunner to today’s trick-or-treating. They can be made with raisins and currents and aromatic spices like allspice, nutmeg, cinnamon and ginger.
Barm Brack (Ireland). On All Hallows’ Eve, you might enjoy some freshly baked barm brack. It is also called Bairín Breac, Barmbrack or often shortened to brack, is a yeasted bread with added sultanas and raisins. Usually sold in flattened rounds, it is often served toasted with butter along with a cup of tea in the afternoon. The dough is sweeter than sandwich bread, but not as rich as cake. The sultanas and raisins add flavor and texture to the final product. The Halloween Brack traditionally contained various objects baked into the bread and was a sort of fortune-telling game. In the barmbrack were: a pea, a stick, a piece of cloth, a small coin (originally a silver sixpence) and a ring. Each item, when received in the slice, was supposed to carry a meaning to the person concerned: the pea, the person would not marry that year; the stick, would have an unhappy marriage or continually be in disputes; the cloth or rag, would have bad luck or be poor; the coin, would enjoy good fortune or be rich; and the ring, would be wed within the year. Other articles added to the brack include a medallion, usually of the Virgin Mary to symbolize going into the priesthood or to the Nuns, although this tradition is not widely continued in the present day. Commercially produced barmbracks for the Halloween market still include a toy ring.
Colcannon (Ireland). It is traditionally made from mashed potatoes and kale (or cabbage), with milk, butter, salt and pepper. It can contain other ingredients such as scallions, leeks, onions and chives. There are many regional variations of this dish. It is often eaten with boiled ham or bacon. An Irish Halloween tradition is to serve colcannon with a ring and a thimble hidden in the dish. Prizes of small coins such as threepenny or sixpenny bits were also concealed inside the dish.
Fiambre (Guatemala). It is a Guatemalan dish prepared once a year on November 1st for the Dia de los Santos or All Saints Day, a celebration that takes place one day before the Dia de los Muertos. Each family has their own recipe for fiambre which is usually passed on from generation to generation. There are different kinds: white, red and divoriciado in which all the ingredients are left separated and each person picks what they want. Fiambre must be prepared at least one day before serving and marinated in sauce blend of vinegar and other ingredients called the caldillo. Many people add fish and even shrimp. The day you wish to serve the fiambre, place a lettuce leaf on a plate, arrange a layer of the veggie mixture and then add a layer of the meats and cheeses. Repeat at least once and decorate with pimientos, sliced cheese, asparagus, baby corn, radishes, olives, and boiled eggs. Serve chilled.
Please share your traditional food for Halloween, All Saints Day, or Day of the Dead, and I hope you enjoy your family recipe, celebrate your cultural heritage, and honor those who are no longer with you. Happy Halloween!
October 24, 2018 § 7 Comments
Several government decisions in the United States and elsewhere have impacted our profession recently, and they all have something in common: They have protected interpreters and translators from some one-sided practices enacted by multinational language providers, copied by smaller interpreting and translation agencies, and adopted by some government bureaucracies to appear as if they are meeting their legal obligations to society.
Some of the most notorious and talked about decisions include the National Labor Relations Board (NLRB) order to the U.S. government services contractor SOS International (SOSi) to reclassify its interpreters working in United States state courts as employees in March 2018, bestowing interpreters and translators who worked for this agency as independent contractors with all protections defined by the National Labor Relations Act, including benefits reserved to full-time workers. In April 2018 some Lionbridge contractors who provided their services as software testers at Microsoft, settled a case they had before the NLRB.
Despite the effects of the decision above, it was the landmark ruling on April 2018 by the California Supreme Court in the Dynamex case that shook the status quo like nothing before. California’s highest court ruled that the delivery service provider Dynamex misclassified its workers as independent contractors when they should be protected and treated as employees. Here, the Supreme Court of California adopted the “ABC test” to determine if a contractor is an independent worker instead of an employee. This decision’s repercussions extended to all individuals providing services as independent contractors, including interpreters and translators, when the company is in control of the performance of such service contractually or de facto; to those contractors who perform a service that falls within the usual services regularly provided by the company; and to those contractors who cannot be regularly selling their services to other clients, because they are constantly engaged by the company, leaving them no time to work somewhere else.
There are many interpreters and translators, myself included, who do not want to be employees anywhere; There are many interpreters and translators, myself included, whose professional practice will not be affected by these or other rulings similar to the ones mentioned above; however, many colleagues would benefit from such decisions. These are usually the colleagues who these entities take advantage of. We are talking about colleagues who, for many reasons, cannot ditch the exploiter and have to roll with the punches, accepting work under deplorable conditions such as rock-bottom fees, solo interpreting assignments, interpretations on a pay-per-minute basis, and other abuses practiced by these agencies never stopped by the authorities before.
As expected, many agencies who practice this business model got extremely nervous: This could be the beginning of the end to their lucrative unchallenged practices. They would not allow this to happen.
On August 8, 2018 the Association of Language Companies (ALC) met in Washington, D.C. to conspire about a way to keep independent interpreters and translators from gaining these legal protections and to maintain the up-until-now comfortable uneven field they enjoy. As a first step, they lobbied the United States Congress to change the law and make it impossible for these interpreters and translators to benefit from the administrative and judicial resolutions that protected them. The event was organized by ALC’s lobbyist: The Joint Committee for Languages and the National Council for Languages and International Studies (JNCL-NCLIS). During the meeting, ALC delegates argued that “…the added cost of providing full benefits to every single contractor would likely put many (agencies) in danger of going out of business…” They manifested that “…the implications for the “industry” could be devastating…” There are two more ALC summits already scheduled for the first half of 2019. For more details on the Dynamex ruling and my interpretation of the ways it benefits all independent interpreters and translators, even those who do not deal with these multinational or abusive agencies, please read my blog entry of August 29, 2018.
We can see that a confrontation of ideas and how we view our profession contrasted by the way these entities perceive us as industry laborers may be inevitable. I do not blame the agencies for defending their golden eggs goose. I understand their decision to lobby Congress to protect their interests; unlike professional interpreters and translators, their loyalty is to their shareholders and partners, not to the quality of the service or the profession. We also need to defend our interests, and we will.
To do it, we all know that we face a David and Goliath battle against the ALC and others. They have the finances to fight us in court and Congress. There are no surprises here and we must plan accordingly.
Unfortunately, on top of the known obstacles we need to overcome, potentially, there is an added problem, something that most colleagues are unaware of, something that looks wrong: Some of the professional associations of interpreters and translators, including the largest, use and pay for the services of the same lobbyist ALC is using to undermine the interests of many of their own members: our colleagues.
The American Translators Association (ATA) is represented, in its lobbying efforts, by the Joint Committee for Languages and the National Council for Languages and International Studies (JNCL-NCLIS). Let me explain: ATA membership fees are used to pay for the services of JNCL-NCLIS simultaneously this lobbyist is advancing ALC’s cause to kill those government decisions that favor many independent interpreters and translators. ATA is not the only professional association with a lobbyist in Washington, D.C., but it is the largest one, and it is the one with Board members up for election this week at the general meeting in New Orleans. This post is not motivated by any ill feelings towards ATA or any other professional association, but by my desire to have more transparent governance and accountability in our associations to protect our profession from those who try to dehumanize it and turn it into a laborer’s service.
I will now disclose some facts about JNCL-NCLIS so you understand exactly who we are dealing with: Unlike most lobbyists, they are a non-for-profit organization that started servicing foreign language teachers. There was a time, however, when ATA’s leadership decided, without a real explanation to the membership, there was synergy between these teachers and ATA members who are not teachers, but interpreters and translators. ATA pays a yearly fee to JNCL-NCLIS for its services as a lobbyist. This differs from the usual per-hour fees that most lobbyists charge to their clients. The amount of this annual payment is based on the size of ATA’s membership, because it is paid with our membership fees. The person from JNCL-NCLIS who deals with ATA is Bill Rivers, who also deals with ALC, and continuously works for the advancement of the interests of the agencies. Interests often in conflict with the interests of ATA’s individual membership (us), even though they benefit its corporate members (they). Bill Rivers deals with ATA’s presidency, not with the Board. The Chair of this lobbyist’s Education and Pedagogy Committee (an unpaid position) is a former ATA President. JNCL-NCLIS has assisted at least one agency owner ATA Board member, along with other agencies, on another matter affecting workers’ compensation for interpreters and translators somewhere in the northwest.
There is a huge conflict of interest, and ATA should retain a different lobbyist, even if the fee is higher. No other association in the world spends the money ATA spends on its annual conference, and an independent lobbyist would be more beneficial to the membership at large than such an extravagant, expensive conference. Corporate members would lose an ally, but professional associations exist to benefit the individual, not the corporations.
Even if JNCL-NCLIS lobbyists are professional honorable people, when lobbying for ALC, they could disclose to House members and Senators they are also ATA’s lobbyists; This will convey the message that interpreters and translators endorse the same positions and business model these multinational agencies do.
Some of ATA Board members are agency owners who vote on decisions that could adversely affect individual interpreters and translators. There is nothing on the bylaws banning this practice, but it is another conflict of interest.
The bylaws need to be amended, if not to bar small agency owners from the Board, to at least keep them from voting where they may have a conflict of interest, or there may be the appearance of one. Meanwhile, all Board members who own an agency, and there are at least three at the moment, and two will remain as part of the Board after this week’s elections, must recuse themselves from participating in any debate and casting any vote where there may be, or may appear to be a conflict of interest. This all judges and corporate board members do every day all over the world.
I invite you to demand that all professional associations with lobbyists on retainer only hire lobbyists that do not represent the interests of the agencies and corporations, and bar all agency owners from voting where there is, or may be a conflict of interest. Meanwhile, I invite you all to vote this week in New Orleans for ATA candidates who oppose the current lobbyist situation and support the recusal of all Board members who own an agency in case of a potential conflict of interest. I now ask you to share your thoughts on these crucial matters to any professional association.
October 1, 2018 § 1 Comment
Occasionally interpreters ask me what to do when retained to assess the rendition of other colleagues in a court hearing or civil deposition. This is a delicate issue for several reasons: As interpreters, we do not like another colleague carefully reviewing every single phrase we interpret; we feel it is invasive and even disrespectful. Sometimes the added pressure of having somebody else, most of the time with more experience than us, ready to jump at the first error or omission will turn a good rendition into a poor interpretation because of the intense scrutiny. We feel uncomfortable doing the same to another colleague when we are the “checker”. We do not want to offend a colleague, even a friend, but we find ourselves between a rock and a hard place when one of our best clients requests we render this service.
The first thing we need to understand is this is a professional service we were hired for. It is business. Also, we must remember what we were retained for: To check the accuracy of another interpreters’ rendition. We were not hired to destroy the interpretation; we were not asked to dispute and question every word interpreted or every term rendered by our colleagues. A professional opinion informing our client that the interpretation was fine will be welcomed by our client. They do not want us there to turn the other interpreters’ work to shreds; we are there because our client wants to make sure that the rendition was complete and accurate. This is important as it lifts an enormous weight off our shoulders. It gets rid of the feelings of disloyalty and guilt.
When I am hired to check on other colleagues during a court hearing (trial, motions hearing, expert testimony, etc.) or a civil deposition, the first thing I ask for is the names of the interpreters to interpret the proceeding. Sometimes I know the interpreters and from that moment I know if my job will be a walk in the park, because the interpreters are exceptional, or if it could turn ugly. Most of the time, I do not know the colleagues. In that case, my first task is to learn as much as I can about that interpreter: Where do they practice; how long have they been interpreting professionally; what experience they have with the type of proceeding and the subject of the rendition; their first language, professional studies, who are their clients, and so on.
I can get most of this online by visiting their website, looking over their resume, and checking their LinkedIn page. I also look for photos online. Sometimes I do not know a colleague by name, but once I see the picture I realize I know who they are, and sometimes I am even familiar with their work. Another important source is those interpreters they usually work with. I may have never worked with the interpreter I am about to check, but I may have worked with some of their partners or boothmates before. Sometimes I may contact these interpreters (when I could find no information on the interpreter for example) but most of the time just knowing who they work with helps me understand the level of the interpreter. Finally, I look for what professional associations they belong to. I know it is not a very good indicator of the level of a colleague, but it helps me understand better if the person cares for the profession and their continuing education. If the interpreters are great, I let my client know right away. This helps me to prepare them for an “everything was fine” report after the rendition. I say nothing detrimental to a colleague a priori. If I have nothing great to tell to my client, I reserve judgement until after the hearing or deposition.
On the day of the interpretation I arrive early, and the first thing I do is say hi to the interpreters. I introduce myself and put them at ease by telling them this is not personal, but I never look nervous or afraid. I also communicate that I know of the fact there is more than one way to skin a cat and their choice of words may not be the same as mine. I assure them that, as long as the rendition is correct, even when their style my differ from mine, I will not make a fuss of the interpretation.
If I hear something I disagree with during the rendition, I am always very careful and rarely interrupt (only in very evident mistakes). There are synonyms and regional expressions that do not make a rendition wrong unless they are essential to the case. If this happens, I wait for the break and explain it to my client, emphasizing that the rendition was correct, but I would have said it differently.
When I hear something and I know it is wrong and relevant, I respectfully interrupt for the record. State my objection to the rendition and why I object. If the other interpreters agree: Great; if they disagree, let them explain and accept your mistake, if any, or be firm if you are right. It is always necessary to have the basis for your dispute: a grammar rule, applicable dictionary, section of the law. Otherwise your objections will seem frivolous, irrelevant, and you will undermine your credibility.
After the hearing, I am professional and courteous with the other interpreters, judge, and attorneys. It is important they know it is a job. Nothing personal.
Finally, I prepare my report in writing, including my expert qualifications and explaining to my client who I monitored, including the results of my research on the interpreters, I describe the room, and do a narrative of the hearing or deposition, indicating all questionable interpretations, mistakes made by the interpreters, and correct renditions I would have interpreted differently due to my personal style (synonyms, regional expressions, etc.). Finally, I type my conclusions. Usually indicating there was nothing of importance omitted or misinterpreted at the hearing or deposition. Occasionally, indicating the interpreting mistakes and the reasons to back up my opinion. I now ask you to share with us your experiences as “check-interpreter” or about being “checked” by other. I would also like to hear what other strategies you follow when asked to be a check-interpreter, and what you include in your report.
September 17, 2018 § 2 Comments
Imagine having to support a family when you are unemployed, poor, desperate, living in a country torn by war, ruled by a despot. Then one day, somebody tells you that, because you speak a foreign language, you can become an interpreter for a foreign army. You are told that you will be paid for that service, and after the war, this foreign government will take you and your family to their country where you will be safe from retaliation, and will live a better life. Those of us living in a western nation cannot even imagine that situation, much less the ray of hope it means to many humans who live in that reality. This is the story, and the dilemma, of a conflict-zone interpreter.
You just noticed that today’s post is about interpreters in conflict zones. Please do not go away! I know most of you access this blog to read and debate topics related to conference, court, healthcare or community interpreting. Today please read this post from beginning to end, show your determination to defend the profession, and do something that will make you feel good as a human.
Throughout history, explorers, conquerors, traders, religious missionaries, and all others who found themselves in a foreign land where they did not understand the local language have used interpreters to accomplish their mission. Often, these interpreters have been local individuals who spoke both, the foreign and domestic languages, and with no formal training, but armed with their natural skills, and some powerful motivation, provided their able services even when it meant risking their lives and the lives of their loved ones. From Malintzin to Squanto, Boubou Penda to Luis de Torres, these interpreters, our colleagues, have contributed to the history of civilization providing a bridge that made communication possible when peoples did not speak the same language.
These interpreters have been essential in all armed conflicts: invasions, liberations, occupations, and peace negotiations. Many in recent history, like the Navajo Code-Talkers who serve the United States armed forces during World War II. Others, anonymously participating in conflict zones like Vietnam, Operation Desert Storm, and the Bosnian War.
Western nations have benefited, and still do, of the services of interpreters in conflict zones who assist military forces and civilian contractors in places like Africa and the Middle East.
From the start of the war in Afghanistan, and the U.S.-led invasion of Iraq, western nations participating in those conflicts scouted those two countries looking for local women and men who spoke the local language and that of the western country. The United States, United Kingdom, Canada, Australia, Spain, France, and others, recruited bilingual individuals, often with a professional education background (doctors, teachers, engineers) who had no employment due to the armed conflict or because of their political opinions, ethnic group, or religious beliefs. Some had openly opposed the local regimes and were personae non gratae in the eyes of the despot in charge of government, others quietly disagreed with the way their countries were governed, afraid to say anything the authorities could perceive as treacherous. Others’ sole motivation was to feed their families.
All these courageous humans knew what they were risking by helping the West. Besides the tremendous danger of being in a theater of operations in Iraq and Afghanistan where they could be killed during a fire exchange, and ambush, or by an improvised explosive device (IED), they knew the consequences if caught. Their execution, and that of their immediate family members was a reality they faced every day the worked with the foreign armed forces and independent defense contractors in their countries. These were (and are) brave and courageous individuals. They also knew that all armed conflicts have a beginning and an end. They recognized the dangers they would face after the foreign troops left their countries. They knew their families, even if not involved in the armed conflict, would face the same consequences. To stay behind after the Western armed forces left would be a death sentence.
The United States and all of its allies were aware of this reality. They knew the only way to recruit much needed interpreters and translators was promising they would not be left behind. These conflict zone interpreters got assurances from the western governments they served that when the time to withdraw their troops came, they, and their immediate families would be taken to their countries to start a new life free from death threats and other retaliatory actions. In other words: conflict zone interpreters agreed to provide their services and the western nations promised they would take them to the United States, United Kingdom, Canada, Australia, Spain, France, and all other countries to use interpreting services for military and civilian personnel. As we know, the troops withdrew from these countries, but many interpreters continue to wait for an entry visa to the country that promised to take them. Interpreters have been admitted to these western countries, but it has been a fraction. Many of those who have moved to their new countries endured a lengthy and cumbersome process. During this time, as expected, many conflict zones interpreters, and their family members, have been executed as traitors back home while waiting for a visa.
These interpreters, our colleagues, did their part, they rendered the service facing tremendous risk and unimaginable working conditions. They were essential to accomplish a mission; through their work they saved many western and local lives. The West has not honored its word.
This is not a political post, and I am not arguing for or against the admission of refugees in any country. I understand there are very solid arguments for and against admitting refugees. I am not endorsing or condemning the armed conflicts in Afghanistan and Iraq either. Solely this post invites you all, interpreters and translators worldwide, regardless of your political persuasion, religious beliefs, or immigration stands, to join to protect the profession by supporting our conflict zone colleagues, just like attorneys help each other, as Marines leave no one behind. We need to raise our voice and tell the governments of those western nations who made a promise to these interpreters when they needed them, to walk the walk and deliver. We need them to know that we know, and we need to push for an expedient visa issuance system for these colleagues. Countries who break promises look bad and lose credibility. Interpreters who believed their promise continue to die while government authorities drag their feet motivated by politics instead of integrity.
Through my work as a civilian interpreter with the armed forces and defense contractors, and as an interpreter trainer, I have met several military and conflict zone interpreters who have served in different places. I have heard from them some horror stories of killings, kidnappings, rapes, and beatings. I have gotten to know many as friends and colleagues. I have met their families. I have also heard the tales of those less-fortunate still risking their lives while they wait for an answer from the West.
I also recognize the amazing, tireless, work of Red T, its compassionate and courageous CEO Maya Hess who I have the privilege to know personally, and the professional associations that support its efforts and share its values: The International Association of Conference Interpreters (AIIC) The International Federation of Translators (FIT) and many of its member organizations; The International Association of Professional Translators and Interpreters (IAPTI); Critical Link International, The International Council for the Development of Community Interpreting (CLI); and the World Association for Sign Language Interpreters (WASLI). Some time ago during the IAPTI Congress in Bordeaux France, I had the opportunity to hear Maya’s passionate description of their efforts to raise awareness and to get a United Nations declaration of legal and physical protection for translators and interpreters in conflict zones. On that occasion, she was joined by another fighter for protecting these colleagues: Linda Fitchett, Chair, Conflict Zone Group, AIIC. Just this Spring I had the opportunity to hear Maya once again, this time in Zaragoza Spain during ASETRAD Congress where she spoke before a big crowd of interpreters and translators, and was joined by some conflict zone interpreters for a round table discussion. On that occasion, ASETRAD conferred honorary membership to Red T. To learn more about Red T and to support their campaigns, please visit: www.red-t.org
My motivation to write this post at this time has to do with the Congressional elections in the United States this November. On November 6, Americans will vote to elect one third of the members of the U.S. Senate (according to the U.S. Constitution, the Senate renews its membership one-third at a time every two years) and for all the members of the House of Representatives. Political campaigns just started last week and all candidates will visit your hometown, attend townhall meetings, debate their opponents, pay attention to your phone calls, and read your mail.
This is the time to tell your senators and representatives running for office that as a professional interpreter or translator, and as an American who values your country’s word and promises, that you want them to pass an increase on Special Immigrant Visa numbers (SIV) for conflict zone interpreters and their families, and to expedite the visa processing times, at least to comply with the nine-month limit in the books which has not been observed. During the last 2 years the number of SIV approvals has declined and the process has seen considerable delays. The official argument is the security background checks. It is understandable and desirable that the government carefully review case by case, but it is also necessary that authorities consider previous background checks and past performance. Remember, these interpreters already worked with members of the U.S. Armed Forces and risked their lives to do their job. Please call the candidates’ campaign headquarters, your Senate and Congressional Offices back home and in Washington, D.C., and support our colleagues. I guarantee you will feel better afterwards.
Regardless of where you live, contact your U.S. Representative. Remember: They are all up for reelection. Please contact your Senate candidates if you live in these States:
To contact the U.S. House of Representatives, go to https://www.house.gov/representatives
To contact the U.S. Senate, visit: https://www.senate.gov/reference/
If you do not leave in the United States, please contact the office of your President, Prime Minister, or Head of Government. You can also visit Red T to sign the petitions.
Remembering that no political debate will be allowed, I now invite you to share with you your experiences as a conflict zone interpreter, or your ideas on how to press Congress and foreign governments to live up to their promise to our colleagues: the conflict zone interpreters.
August 29, 2018 § 5 Comments
The Association of Language Companies (ALC) effusively announced that on August 8 of this year “leaders from the language service industry gathered on Capitol Hill to sound the alarm over new <disruptive> employee classification regulations that threaten to upend the $45 billion-per-year industry’s business model”.
Over fifty individuals attended their “policy summit” to “strategize an industry-wide response to the recent California Supreme Court ruling which narrowed the definition of who can be classified as an independent contractor”.
As part of a public relations campaign, many of these agencies’ representatives have been telling interpreters that the California Supreme Court decision is terrible and, unless it is neutralized, it will effectively destroy the interpreting “industry” leaving thousands of interpreters with no work. Without even hearing the details of the decision, and knowing how it will affect them as freelancers, not as agencies, some of our good colleagues celebrated the agencies’ lobbying efforts, and even praised them for “saving our source of income”.
I agree that the Dynamex decision by the California Supreme Court will affect freelance interpreting, but I disagree it will hurt independent interpreters and it will be the end of our profession as we know it. This court decision is a rare occasion when judicial decisions favor independent professionals over the special interest groups financed by the big multinational agencies, and if independent interpreters play their cards wisely, it will bring huge benefits to them. Let me explain:
We should start by understanding what the California Supreme Court decided on April 30, 2018 in Dynamex (Dynamex Operations West, Inc. Petitioner S222732 v. The Superior Court of Los Angeles County, Loa Angeles County, Respondent; Super Ct. No. BC332016, CHARLES LEE et al., Real Parties in Interest).
In an 82-page decision, the Court rejected the Borello test to determine whether workers should be classified as either employees or independent contractors for the wage orders adopted by the California Industrial Welfare Commission, for a worker-friendly standard that may change the independent contractor market. The California Supreme Court embraced a standard presuming that all workers are employees instead of contractors, placing the burden of proof on the agency or other entity classifying an individual (in our case the interpreter) as an independent contractor. For those of you who practice court interpreting: This is similar to the prosecution burden of proof in a criminal case. Although not subject to a “beyond a reasonable doubt” standard, companies, agencies, and other entities must overcome the legal presumption of employment (just like the presumption of not guilty in Criminal Law).
But, where does this decision originate?
Dynamex is a nationwide same-day courier and delivery service offering on-demand same-day pickup and delivery. Before 2004 Dynamex classified all of its California drivers as employees, but staring in 2004 they converted all of their drivers to independent contractors to save money on employee benefits and expenses related to income tax retention. A year later, a driver named Charles Lee entered into an independent contractor written contract with Dynamex. After leaving his work at Dynamex, Mr. Lee filed a class-action lawsuit on his own behalf and that of other drivers in a similar situation against Dynamex. During their time working for Dynamex, these workers had to work during the hours and according to the schedule unilaterally set by Dynamex; they received direct and strict direction from Dynamex in a subordinate relationship instead of an equal-to-equal relationship as expected by independent contractors, and the drivers could not work for someone else because they were always working for Dynamex under the described conditions. They alleged that Dynamex had misclassified them as independent contractors in violation of State law, including various sections of the Labor Code and the Business and Professions Code Section 17200 (engaging in unfair and unlawful business practices).
The case went through a long litigation in California until it finally reached the Supreme Court where the Court framed its decision by broadly characterizing the misclassification of independent contractors as harmful and unfair to workers, honest competitors, and the public. The Court did a long and detailed analysis of precedent, analyzing Borello, Martínez and Ayala v. Antelope Valley Newspapers, Inc. (59 Cal. 4th 522, 527. 2014)
The California Supreme Court rejected Dynamex’s arguments for applying said previous cases. Instead, the Court adopted the ABC Test to determine if an individual is an employee or an independent contractor. Under the test, a worker will be deemed to have been “suffered or permitted to work”, and thus an employee, unless the employer proves:
- A. That the worker is free from the control and direction of the hiring entity in the performance of the work, both under the contract for performing the work, and in fact.
- B. That the worker performs work that is outside the usual course of the hiring entity’s business; and
- C. That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
Each requirement needs to be met for the presumption that the worker is an employee to be rebutted, and for a court to recognize that a worker has been properly classified as an independent contractor. If a worker is classified as an employee, the employer must pay Social Security and payroll taxes, unemployment insurance taxes, state employment taxes, worker’s compensation insurance coverage, and all Labor Law rules and conditions regarding wages, vacation, sick leave, overtime, maternity leave, etc.
Bringing the Court decision to the interpreting field, we find that most agency-freelance interpreter relationships will fail the ABC test.
Agencies would fail “A” because they micromanage interpreting assignments. From checking in and out when arriving or leaving the site of interpretation, to endless paperwork required for payment and other “rules”; not forgetting ridiculous dress codes, and other one-sided rules such as not talking with the client about interpretation.
They would also fail “B” because it would be extremely difficult to argue that the fact that an interpreting services agency is hiring an interpreter as an independent contractor, constitutes a service outside the course of the agency’s business; and
They would fail “C” because they hire the interpreter according to such schedules they cannot render the services anywhere else, they make them sign non-compete contracts, force them to hide their personal business from the client so the agency does not lose the client. In other words: an outsider could not see the difference between a staff interpreter working side-by-side with an independent contractor.
Now you know, the “industry leaders” are spending their money in lobbyists so they continue to pay rock bottom fees to most interpreters with no risk. They keep the money and the interpreter gets close to nothing, without having a say.
I don’t want you to think that all agencies are bad either; I happily work with some who respect me as a professional. I am not saying that freelancing is bad. I do not want to be considered an employee of any agency or other entity.
I do not support what the multinational agencies are doing for three reasons: First, because I want to be the one who decides if I want to be an independent contractor or not. I do not want to leave the decision in the hands of greedy one-sided “industry leaders”. Second, I think that been treated as employees would be great for many colleagues who could not succeed in the freelance market. They would get a decent wage, and many other social protections that otherwise they would lack if they continue to freelance for those agencies who bring in the money for the shareholders (nothing wrong with that) and pay very little to the interpreter, so little it is not enough to afford a decent health insurance coverage and a retirement plan (this is wrong). My third and very powerful reason not to support this lobby effort is very important:
Now that there is a court decision that favors independent contractors in California, interpreters should seize the moment, take advantage of this leverage, and negotiate a system that benefits all professional interpreters: those who want to be staff and those of us who will continue to freelance. A system that keeps agencies in business, but eradicates the one-sided system most interpreters (out of necessity or because of lack of negotiating skills) endure today. I propose this:
Raise our voice so the non-interpreters in the field (aka: the “industry leaders”) do not get away with passing one-sided legislation as they are trying right now. We have to act with energy and decision because they are pursuing an option as nefarious and unfair as the “Major League Baseball” exception Congress granted once and landed thousands of professional ballplayers in servitude where they could be bought, traded and sold having no input.
These “industry leaders” argue that Dynamex should not be applied to them, because they are not part of the “gig” economy. They told Congress they “exclusively” work with “…highly-trained and educated professionals whose success is dependent upon the highest quality of work…” adding that “…to be a professional linguist takes years of education and training…” They mentioned the State Department interpreters as an example. I wonder why they did this instead of mentioning the many interpreters they hire without a college degree but with a high school diploma, or how they justify laborer pay for such illustrious “linguists”.
We do not have the funds to lobby against this multi-headed hydra, and we cannot go to our largest professional association because it will not go against the interests of its corporate members, and they may even share the same lobbyists as the “industry leaders”. What we have is the right to testify in congress, appeal to the ACLU for help if needed and pertinent, and most important: We have our professional services and skill as leverage.
I wonder why we need to change the law and attack the Supreme Court decision. If agencies really want to work with the best, professional, trained, and experienced, they should have no problem complying with the ABC criteria. The problem is, dear colleagues, that they do not want the brightest professionals, they are too expensive. They want the high school diploma new paraprofessional interpreter who will work for a pay similar to Wal-Mart’s, and to avoid mistakes, she must do it under micromanagement conditions. They do not want the best because they would risk to lose the client. They want somebody so afraid of losing this laborer’s salary job, that he will never dare to tell the client he interprets independently from the agency, even when the client already knows it and sees this situation as ridiculous.
Interpreters, however, could join the “industry leaders” as a common front to pass legislation fair to all parties. Instead of eliminating the criteria in Dynamex, a fair legislation should allow for interpreters to opt out of the employee reclassification and remain as freelancers if they do it freely, with no coercion by the agency or other entity retaining their services, and both, the written contract and de facto performance demonstrate this was not a sham by the agency, but a real independent contractor. Interpreters could then negotiate with the retaining agency a professional fee that truly depicts their freelancer status and not an employee working under serfdom conditions.
At this time in California, and unless the law changes, interpreters should demand compliance with the ABC rule. As of today, with the Supreme Court decision as the supreme law in California, compliance protecting interpreters and our profession is possible:
“A” can be overcome by negotiating a written contract that clearly leaves the interpreter free of the agency’s control. It clearly states that interpreters will deliver the service they are retained for, but all conditions to implement the service and fulfill the obligation are left to the interpreter. No more stupid paperwork that requires hours of unpaid time; no more micromanagement in the contract and in the real world.
“B” will be more difficult to overcome, especially for the smaller agencies because the multinationals have so many other businesses through subsidiaries it will be costly, but possible to solve this requirement. Remember that it is the agency’s burden, so you need not worry about this one.
“C” is your real leverage. The agency cannot overcome this requirement without the interpreter’s cooperation. You will have to show that you have a website, or an office where you offer your services to other prospective clients; you will show you are a real independent contractor by showing the authorities how you are not contractually bound to secrecy when a client asks you for your services during an assignment with the agency. More important: without your cooperation, the agency can never prove this requirement.
We must educate ourselves so we do not jump up and down as cheerleaders to support this public relations propaganda campaign. Seize the moment and change the landscape. Make these “industry leaders” live up to what they preach and, using their own words, demand they only hire the highest quality of professionals with years of education and training. We can support them in their lobbying efforts, but only when all professional freelance interpreters are paid professional fees. Do not listen to those colleagues who live in fear, worship these agencies, and think they are doing them a favor by hiring them to work. There cannot be an interpreting agency without interpreters. There can be interpreting services without agencies. I now ask you to share your thoughts with the rest of us, and please be advised that comments defending agencies will not be posted. They have plenty of media outlets to proselytize. Here we want to hear the voice of the interpreters.
August 15, 2018 § 9 Comments
Have you noticed mediocre agencies always say: “unfortunately, your fee is way over the budget this client has for the event”? This seems to be the answer I get most of the time, even from the big multinational interpreting services agencies, and it is the main reason I reject an assignment offered.
It makes me wonder how those huge multinational agencies, worshipped by their colleagues in the “industry”, who claim to be service providers to the biggest corporations and organizations in the world, can be as big and profitable as their financial statements show, (and believe me, thanks to public litigation records from lawsuits involving some, market share values, and their own bragging about their success, we know they are turning profits never seen before) when according to their conversations with interpreters, our fees are almost always above their clients’ budgets for their main, once-a-year conference, launching of a new product presentations, multi-million dollar fundraisers, or award ceremonies. I find it difficult to believe these agencies would only work with “starving” clients.
The main issue is how these agencies’ clients decide on a budget for their events. I would think that corporations have little knowledge about interpreting services, and for that reason they go to language service agencies to find out about interpreting costs, just as they go to the caterer for information on the cost of food, or to the hotel to see how much it costs to rent a ballroom for the weekend. The agency informs the client or event organizer how much interpreters will charge, and what else they need to factor in (equipment, booths, technical support) before determining the amount needed for interpreting services. The agency tells the client what interpreters will cost. Then, armed with all necessary information, the corporation of association sets a budget. It is not the other way around.
The problem is that agencies want to pay interpreters very little so they can have great margins, and they tell their clients they can get interpreters for very low fees; even when the agency knows they will never get the best human talent for such a tiny paycheck. They have offered lower quality interpreters willing to work for below market non-professional fees.
If an ignorant client contacts the agency and tells them they want an interpreter for no more than a certain amount, and the amount is below prevailing professional interpreter fees, that is the time for an agency to educate the client and tell them: “…sorry, but a team of interpreters would cost you such and such professional fee per interpreter per day…” and then explain that interpreters charge by the day, that every time they are retained to work four hours or less, they must be paid for half a day, unless the four-hour (or less) assignment encompasses both morning and afternoon hours, because in that case interpreters need to be paid for a full day since they cannot generate any other income on that day. During this conversation, an agency interested in quality interpretation would add: “…by the way, half days are handled this way…”
Then, if the event requires interpreters from out of town, the agency must make it very clear to the client these interpreters will charge at least half of the full-day fee for each travel day. Finally, the agency should clarify that, separate from their fees, these out-of-town professional interpreters will need for the client to cover their travel costs: travel, lodging, in-town transportation, and Per Diem.
At the beginning, these agencies may have to sacrifice part of their margin, but in the long run they will turn more profitable than those who turn their backs on the interpreting profession and embrace the low-quality ranks of the so-called “industry”, because their clients will notice the difference in the quality of the service and will go back to the same agency time and again. These are the agencies interpreters look for. These are the real interpreting services agencies. I would like to hear your ideas on this issue, and please share any relevant experiences you had.