Some interpreters in the U.S. may not have an even playing field anymore.

December 11, 2014 § 4 Comments

Dear colleagues:

The issues discussed in this post apply to situations lived by many interpreters all over the world. Our profession is growing and fighting for recognition and prestige. For this reason, I think all interpreters should read this story, regardless of the country where they provide their services.

Every interpreter who has worked with the judicial system in the United States knows that court interpreting at the state-level is very different from providing our services at the federal judiciary. We also know that there are sharp differences on how each state procures court interpreters to meet their legal needs. Although most of them pay very little to the certified court interpreter, some pay “better” than others; some treat interpreters better, and some remain ignorant as of the role of the interpreter and its high relevance to the judicial process. This is all widely known; some court systems are infamous for treating the interpreter as an inconvenience rather than a constitutionally-mandated component of the judicial process (in criminal matters). This is not the issue that I want to discuss with you today. I want to talk about something else.

I would like to discuss with you the new scenario that our state-level independent court interpreters in the United States are facing with the enforcement of Title VI of the Civil Rights Act of 1964 (not a moment too soon) and the financial difficulties and budgetary cuts that many states are dealing with at this time. As many of you know, Title VI of the Civil Rights Act is a federal law that requires all government agencies, regardless of their level, to give access to all services to everyone (including those who do not speak English) if they want to continue to receive financial assistance from the federal government of the United States. This includes courthouses. Until a few years ago, only criminal cases had to meet this requirement because, unlike civil law cases, it was a constitutional mandate. This means that now state-level courts in the United States have to provide interpreting services for all civil and family law cases with essentially the same budget they had for criminal cases only. Many states have struggled with this change and most of them are trying to find the correct strategy to meet their legal mandate while at the same time living within their budget. Of course, there are some obvious solutions that state courts have chosen to ignore even though they would greatly relieve their interpreting case load. I have talked about this issue before and, undoubtedly, I will discuss it again in the future.

The facts show that many states are now more cautious as to where and how they will spend their money (or I should say, their constituents’ monies) This has generated a more “creative” approach in many places where the goal seems to be to comply with the federal mandate by simply providing a “warm body” next to the foreign language speaker at the lowest possible cost. As a result, there are now more qualified top-notch court interpreters with less work than ever before, while there is an unprecedented number of underqualified, mediocre interpreters working the states’ systems for a lower pay and more advantageous conditions for the state’s judiciary. There is plenty to talk about, but my motivation to write this post came from something I learned from a colleague who works as an independent court interpreter with the court system of one of the states in the U.S.

Apparently, just before the beginning of the state’s budget cycle, known in the United States as the fiscal year, this state sent out to all court-certified independent interpreters within the state, a professional services contract that had to be executed and returned before the first day of said fiscal year. The contract was a multi-page document that spelled out in great detail the interpreter’s responsibilities to the courts. It also contained a clause on fee payments that indicated the state’s official fee and some other conditions. Among them, there was a minimum fee guaranteed to all interpreters who accepted an assignment with the state courts. The contract showed two different scenarios. Under the first one, and interpreter could be called in to work at the courthouse for two hours, and if the case or cases were resolved before the time was up, the interpreter would be paid for the guaranteed time. The second scenario operated identically, with the exception that it referred to more complex cases and for that reason the minimum guaranteed fee was of four hours. This seemed to be a fair provision that in fact incorporated into this contract a widely accepted practice followed in that state for many years. The problem was on the next sentence of the same paragraph. The contract established that if the cases the interpreter was called for were to end before the minimum guaranteed period was up, the interpreter had to remain at the courthouse in case something else would happen and interpreting services were required. Up to here everything was fine, but immediately after, the contract indicated that said interpreter could be sent to another courthouse in the state to work off the rest of the minimum guaranteed fee. The interpreter had the right to refuse the second assignment, but in that case he would be penalized with a pay cut as he would only be paid for the actual interpreting time, not for the guaranteed time. In other words, the “guaranteed fee” did not guarantee anything, as the interpreter would be at the mercy of the court who would become, for all practical purposes, the employer, because only employers can dispose of their employees time that way. A client cannot control the time of an independent contractor.

I immediately thought of two scary scenarios: Just imagine for a moment that an interpreter with a sick child agrees to work for two hours at her neighborhood courthouse. She needs the income, so she figures out her schedule, gets a babysitter for a little over two hours, and goes to work from 9 to 11 in the morning. All of a sudden, the cases she was called in for do not go to a hearing because the cases are continued to a future date (this happens every day in all courthouses of the United States) It is only 10 in the morning, so she reports back to the interpreter coordinator; she tells her what happened, and sits down waiting for possible cases between 10 and 11 o’clock when she is going home to her sick child. Unfortunately, the interpreter coordinator has other things in mind and asks her to go to a different courthouse 40 miles away. The interpreter objects and claims that going to that other location will take about 30 minutes one-way. The coordinator states that the 2-hour minimum is not over yet. The interpreter explains that she was counting on working until 11 in the morning, and going to the second location would result in an additional 60 to 90 minutes. The coordinator explains that the interpreter would be compensated for her travel time at the reimbursement rate. The interpreter declines the assignment and the coordinator explains that due to the refusal, she will be paid for one hour of services, not two. This could also happen to another interpreter who has other professional engagements (not with the court) immediately after the time she was hired for. You see? The “guaranteed fee” is not such a thing. The court does not understand that interpreters sell their time and from the moment they commit to an assignment they cannot accept anything else during that period of time.

The same contract indicates that the state shall pay the interpreter for the services rendered within 30 days from the time of filing of the invoice; unfortunately, it also states that the interpreter cannot add any late payment interest or penalties when the courts don’t pay on time. Obviously this turns this contract into a one-sided document with no contractual value but for one of the parties: the courthouse. Interpreters are barred from protecting themselves as they cannot pursue compensation for the damages caused by late or non-payment.

Apparently, this contract was exclusively crafted by the courts, and the interpreters did not have an opportunity to seek legal advice and representation before signing the document. Moreover, there is an advisory body for interpreting matters in this state where independent interpreters are a huge minority since all court players are represented separately: judges, administrators and staff interpreters. In other words, the interests of the state will always have a majority of votes in this advisory body. Obviously, something is wrong with this picture. I am not saying that it is exclusively the courts’ fault, because the interpreters needed to be more assertive. And this takes me to the real root of the problem: A silent careless interpreting community dealing with a court administration that wants to protect its interests (as it should) and will take everything it can as long as the interpreters do nothing about it.

Those of you who have met me in person or regularly read my blog know that I am not in favor of protectionism in any way, shape, or form; you have probably read my opinion regarding “equal assignments for all interpreters” and protection to those who are not up to speed with new technologies. I am totally against these ideas. I do believe that it is up to the individual interpreter to do whatever it takes in order to secure more work with the courts or with any other client. You also know that I am not a big fan of working for the court systems, especially at the state level, because they pay very little and often do not treat interpreters like professionals. The best and permanent solution to this problem, from the interpreter’s point of view, would be to leave the court work and do some other interpretation (including out of court jobs where interpreters can negotiate their professional fee with the attorneys) but for those who do not want to quit the courts, my suggestion would be to seek legal advice and negotiate before signing a contract, to use their professional associations to educate the interpreters and perhaps collectively retain the services of an attorney to look over their interests, not the courts’. I am not saying that professional associations should turn into labor unions, nothing like that; all I am suggesting is that besides continuing education, a member directory, and social events, these organizations should look into these issues not to improve working conditions, but to improve the level and quality of the professional service provided by its members. By doing this, interpreters’ working conditions would be indirectly improved as this is a needed requirement to raise the quality of the professional service. Finally, independent court interpreters must consider the court as a client, not an employer. Dear friends and colleagues, the courts are our clients, and they are not even our best clients; even if you get most of your work from them, they are not the best-paying client; therefore they are not your best client. To consider a client as the best because of how much work they send your way instead of because of how well they pay would be like saying that Wal-Mart is a great clothes store because of its volume, when you have many other businesses that sell better products of higher quality. I invite you to post your comments on this issue, and to share your experiences of what you have perceived as an abusive behavior by a state court; and remember, no names or specifics on the courts or people please.

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§ 4 Responses to Some interpreters in the U.S. may not have an even playing field anymore.

  • I find this post to be very timely! The ‘warm body’ approach to hiring is seen all too often. I feel that many courts treat interpreters and their assignments with an attitude of ‘take it or leave it’. I strongly feel that as interpreters, we should not view working in the courts as the climax of our careers, but rather seek to constantly improve our skills and opportunities. I think the State courts are merely taking advantage of a pool of workers who feel they have no alternatives but to accept what is offered by the courts. There are alternatives available, but we as professionals have to rise to the occasion.

  • Judith Kenigson Kristy says:

    In my state, our T&I association is very active. Not long ago, when faced in with negative changes in the “rule” governing our pay, we gathered together a committee of 20 volunteers to take charge of fighting the changes so that we could present a united front before the “powers-that-be” (in this case, the State Supreme Court). We made a phone tree to alert all members of the issue; we wrote a sample letter outlining our position on all the contested matters and emailed it to all concerned interpreters, so that members and other sympathizers (including some lawyers and judges) could adapt and/or copy it and send it to the court (79 letters were received by the court!); we conducted a detailed email survey showing that credentialed interpreters would not work under the new conditions; we did an analysis of the number and location of credentialed interpreters vis-a-vis the distances they have to travel to service all the state’s courts, and placed the information on a map; we prepared a 30 page PowerPoint presentation with graphs and charts showing all the information from the survey; and we even added some other requests and suggestions about working conditions that we wanted to make. We submitted it all to the SC and the AOC. In the end – we won on almost all of the concerns we expressed! This is the second time we have done this in the last 10 years, both times with success. Interpreters and their associations CAN make a difference if they try!

  • Simon Drew says:

    This is a global problem, not just limited to the US. In Denmark, the government is now proposing to remove the requirement for translation of legal documents to be done by state-accredited personnel. Their reasoning is that it would remove unnecessary bureaucracy and open the branch to more linguists (no doubt lowering the threshold for qualifications and pay at the same time).
    And yes, it is perfectly understandable. There is nothing about the interpreter’s line of business that makes it a safe haven from the winds of change. State authorities will seek to move from models based on secure tenure to ad hoc contract as needed. They will invariably seek to make budgets stretch and demand greater flexibility from their service providers. If their payments are too low, those service providers have the option of declining the task. Such is the free market.
    It may be that civil action or professional protest groups can fight in the courts to uphold existing conditions and guarantees; best of luck to them! But in the final analysis, and regardless of whatever historic precedent has been set, globalisation, capitalism, the internet and budgetary constraints are all shaping the future of interpretation and translation. What, then, is to be done?
    Some people see the rôle of the interpreter as a(n un)necessary evil, getting in the way of ‘business’, increasing time and cost. Interpreters should turn this perception around, and make people understand that they are adding value, enabling business and ultimately saving time. Where possible, they must seek to establish supra-national recognition for their trade, by ensuring and maintaining high standards with guarantees for quality, speed and price. Where this is not possible, they must be innovative, flexible and open, while pointing out the advantages of using highly qualified staff over ‘cut-price’ amateurs. In any case, let the quality of the product/service speak for itself.

  • Natalie E. Williams says:

    A state that I use to live in (the governor’s idea actually) made changes in how state agencies procured services and products. All “purchases” had to be made through a new service that charged a percentage of the bill for a service fee. In return you were listed on their website so you were easier to find, proved you were eligible to do business with the state, etc.

    The state’s department for the Deaf and Hard of Hearing contracted with sign language interpreters and state agencies to provide standard fees based on the qualifications of the interpreters, also providing interpreter coordination. This had been in place for many years.

    At the time they announced the requirement to sign up for this new “service”, I had already accepted an assignment through the department. I had less than a week to decide if I would accept and sign up with this complicated system and have to pay their service fee or cancel the assignment leaving the clients in a lurch.

    I stopped working those jobs and never looked back. Many freelancers did as well, so the work went to agencies – when they would take them. It cost agencies more than they earned to fill those jobs.

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