Are we protecting our profession? Part 1.

March 29, 2016 § 49 Comments

Dear Colleagues:

Every now and then something happens in our profession that makes me wonder if we are truly doing what is best for all of us: individually and collectively as interpreters and translators.  In fact, this happened recently when I learned, like many of you, that the American Translators Association had revisited the antitrust legislation issue and had reviewed its policy.  As expected, ATA followed its traditional pattern of protecting the “interests” of the association over the interests of its individual members or the profession, and adopted a policy that clearly observes antitrust legislation as is, without questioning it.   It is not clear to me how the association arrived to this resolution to endorse everything the government wants, and is included in the legislation and case law, without first seeking a legal opinion from attorneys who disagree with the current antitrust laws or their interpretation by the government.  As I understand it, the mission of a professional association is to advance and protect the interests of its members and the profession they practice.  This can only be accomplished by assessing the current legislation as to its impact on those who it is supposed to protect.  I am convinced that a well-publicized campaign to get public comments from the membership, and seeking a legal opinion as to how to interpret the current legislation in the light most favorable to the interests of the individual interpreters and translators, which could have included proposed amendments to the antitrust legislation would have been fruitful and very successful.  Of course, it would have rocked the status quo where big multinational businesses, sponsors or members of the association, benefit from the current interpretation of the law and the association’s corporate policy, that leaves the individual members on an uneven field where they cannot talk about the insulting and sometimes degrading fees, or rates as these huge corporations refer to them, that are offered for their interpreting and translation services.

We all want to comply with the law, and nobody is suggesting that we break any legislation. On the contrary, we should always observe the law of the land, as these rules and regulations exist to protect the weaker members of society from the actions of those who are in a position to take advantage of them.  This does not mean that we should not question a legal precept when we believe that it is not advancing justice or protecting the weak.

Antitrust legislation was born in the United States in the latter part of the 19th. century when the legislator, first at the state level, and later at the federal Congress, saw the need to protect consumers from big business that at the time was acting as big conglomerates with “excessive” economic power according to the opinion of a majority of the citizens of the United States. The goal of the legislation was to regulate the conduct of business corporations by promoting a fair competition for the benefit of the consumer. Legislation such as the Interstate Commerce Act of 1887, the Sherman Act of 1890, the Clayton Act of 1914, and the Federal Trade Commission Act of 1914 became the law of the land.  They were followed by more recent laws like the Robinson-Patman Act of 1936 and the Celler-Kefauver Act of 1950. Ohio Senator John Sherman clearly explained the rationale behind this policy when he said that: “…If we will not endure a king as a political power, we should not endure a king over production, transportation, and sale of any of the necessaries of life…” (Speech delivered in the U.S. Senate on March 21, 1890) The U.S. Supreme Court agreed with this spirit of the legislation when it referred to the Sherman Act as a “charter of freedom, designed to protect free enterprise in America” (Appalachian Coals, Inc. v. United States, 288 U.S. ({{{5}}} 1933) 344 [359]) Antitrust legislation goes against the freedom of speech protected by the First Amendment of the Constitution, but it is tailored under strict scrutiny to limit this right only as it protects the consumer from the voracious unscrupulous merchant. We have many examples of these businesses throughout the more than one hundred years of antitrust laws in the country: The mining industry, the automobile industry, and even the telephone industry are some of the examples that come to mind. In all of these cases we can clearly see the benefits of restricting commercial and industrial activities to avoid monopolies.  We do not dispute that, but the fact is that the world has changed and we now face a very different economic reality than the one faced by the antitrust legislator of the 19th. century.

Technological advances and the rapid growth of globalization have created a world with uneven realities and circumstances in many fields, including interpreting and translating. When applied today, the rules conceived to protect the weak from the powerful, provide shelter to multinationals like Capita, SOSi, and LionBridge who take advantage, with the blessing of some of our professional associations, of the legal ban to talk about fees and working conditions of professional interpreters and translators who are forced to negotiate with commercial, not professional, entities who take advantage of any circumstance they can use in their favor.

But it does not need to be that way, a careful reading of the law shows us that discussing fees and work circumstances is legal, as long as there is no agreement to fix a fee.  The problem is that, to avoid any possible discomfort, some professional associations adopt internal rules and policies where all mention of fees has been proscribed.  It is clear that there is a need for litigation, it is the courts, not the executive branch, who should decide if these 19th. century rules designed to protect the little guy from big business should apply to individuals who make a living from the practice of a professional service, not an industrial or commercial activity (despite the efforts by many to convince us of this model) who are constantly oppressed and taken advantage of by the big business of multinational interpreting and translation corporations.

Who is the little guy who needs the protection of the law under these circumstances? Professional service providers should not fix their fees for services offered to their individual clients: the consumers in this scenario; but there is a big difference between offering services to a neighbor or a store down the street where I live, and having to accept rock bottom fees from publicly traded entities who have a presence in fifty countries.  The court system needs to decide these cases, and if the decision is adverse, the legislation has to be changed. Not all legislation is good or fair; in fact, there are plenty of examples where we can see how the law created or enabled an unjust situation. Let us remember that not long ago the United States had legislation that favor slavery, or deprived women from the right to vote.  This is where professional associations are expected to act to protect their individual members and above all: the profession.

Perpetuating the present situation will not advance the profession, it will mutate it into some kind of involuntary servitude where the big guys will call the shots.  I now ask you for your comments, in the understanding that nobody is calling for violating current legislation, just to change what we have right now, and to opine about the role that a professional association should play when the profession needs to be protected from exterior forces who are trying to hijack it from the interpreters and translators.   Next week we will discuss the same topic from a different perspective: The professional associations and the battle against the professionalization of the interpreter.

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§ 49 Responses to Are we protecting our profession? Part 1.

  • hcazes says:

    Tony,

    I am very glad you are addressing this topic.

    I was awaiting ATA revisiting their “antitrust policy,” assuming that they would update it and clarify its vagueness that led to the disconfort about how much one could say, or not say, about fees. It always seemed to us that, out of an abundance of caution, people bent over backwards and were going too far.

    Imagine my dismay when I finally saw the “new and improved antitrust policy” that went a step beyond that vagueness into expressing very specificaly everything ATA members are NOT supposed to even mention. Which encompasses not only not daring to use any number or unit regarding fees, but also quoting or providing links to fees or schedules that are publicly known or published, even speaking about things such as payment terms or working conditions, among other things.

    I totally agree that I was expecting MY professional association, the one that is supposed to be advocating and supporting MY profession and MY interests, to try and find legal advise that would guide me and my colleagues as to how we can broach these subjects without unadvertently falling down the slippery slope of “price fixing.”

    I am dissapointed.

    And now it seems, from what I have read, that I will have to keep quiet and not say anything about anything regarding the business side of my profession for fear, not only of the FTC falling with all its wrath upon me for giving out a quote to the wrong person, but of violating ATA’s rules and being expelled (I assume).

    Food for thought, and awaiting the second part to this series….

  • Perhaps it is time to revisit the value of membership in ATA. I don’t believe we have this stringent policy in NAJIT, do we?

  • Isn’t it ironic that interpretations of anti-trust law, designed to protect the little guys against abuse by big operators colluding with one another, are now being used to silence and oppress independent business people and protect the interests of the big sharks?

  • I understand janitors and workers in fast food franchises in US, who are now demanding very loudly to have the minimum wage in US gradually raised from $7.25 to $15, have their associations too. These associations are actively supporting and protecting the janitors and fast food workers because they are looking for the interests of their members, not those of the owners of the franchises, equivalent to “the translation industry”. If these associations were like the ATA, they would be telling the janitors and fast food workers not to even talk about how little they make “due to antitrust laws”, as the ATA is doing, let along demand better pay. Why is the ATA actively trying to harm the interest of its members, who are mostly translators and who generate most of the income of the ATA, as Tony so eloquently describes it in his post?

    Can ATA even still call itself “American Translators Association” when it is so obviously trying to push the interests of “the translation industry”, which loves the low, low, rates that it has been able to impose on many of us, and work against the interests of translators?

    Shame on you, ATA, shame on you!!!

    • Maksym Kozub says:

      Janitors and fast food workers are not independent contractors, i.e. businesses. Their associations are trade unions, and ATA is not. See e.g. http://www.atanet.org/governance/governance_policystatement.php:

      “8) Other unions have recommended rates, why can’t ATA?

      ATA is not a labor union. For tax purposes, ATA is a 501(c)(6), which is defined as a “Business League” and includes professional and trade associations like ATA. Business leagues are intended to promote common interests within an industry in a neutral manner but are not permitted to engage in collective bargaining to legally establish prices.”

      • So all or most janitors and fast food workers are members of trade unions? That is news to me. Maybe I should ask at my local McDonalds how many of the burger flippers there are union members.

        But I think you are missing the point, Maksym. The official name of the ATA is American Translators(‘) Association, not the American “Translation Industry” Association. However, over the decades the nature of the ATA has changed and it is now an association that is promoting the interest of the “translation industry”, i.e. of the translation agencies, while actively working against the interests of translators who the association purports to be representing.

        The latest attempt to prohibit translators from even talking about their low rates is just another piece of evidence illustrating the sad situation. The ATA is now a translation industry association, along with other associations that the translation industry has. ATA no longer promotes the interest of the profession, i.e. of the translators.

        It is obviously in the interest of the translation agencies to keep our rates as low as possible. And it is obviously within the power of the ATA to fight for higher rates for translators within the framework of existing laws. The ATA is doing the exact opposite.

      • Maksym Kozub says:

        Dear colleague, I get your point, but you seem to be missing mine. I am not an employee but an independent contractor, registered sole trader (called “individual entrepreneur” in my country), etc. That means that unlike janitors (employees getting their wages, having their trade unions and negotiating with employers, going on strikes, and using other ways to protect their rights as employees), I am a _business_ (a small one, but still). For FTC (or my country’s antitrust authority, for that matter), I am not much different from an agency, a multinational corporation, etc. I mean, I am a microbusiness, but still, from the fundamental antitrust perspective I am under the same sort of restrictions etc. in a free competitive market. I am not saying that those restrictions (or ATA’s interpretation of the same) are always logical and commensurate with the real situation, but there is some general logic behind those.

      • There is some logic in what ata is doing, but as Kevin points out, it is perverse logic.

        The law was designed to achieve the opposite of what it is used for by the government. If you don’t see it, then you don’t see it and there is no use discussing it.

  • lukegos says:

    Simply put, governments seem to believe that cheaper is better and just get focused on promoting whatever can get the prices down and stamping out whatever can put them up. They’re even ready to promote middlemen as buyers just to screw manufacturers as sellers. Anything that can be remotely expected to get the price down. Yes, associations should oppose excessive, heavy-handed requests from the government. Polish antitrust ombudsman has forced our TEPIS to pass a special resolution of the board to back out of recommendations.

  • mariosphere says:

    My colleague and friend Anna Schuster alerted me to this discussion on Twitter. How quaint that there’s so little discussion allowed in ATA-controlled social media fora about rates, fees and such, as if A) we were to endanger ATA’s IRS nonprofit classification and B) the simple mention of rates or fees automatically means whining and complaining from ATA members who don’t know how to negotiate their rates.

    Taking the idea from my colleague Emily O. Alfonso, maybe it’s the responsibility of every translator and interpreter who works on a professional level to take stock of his/her membership benefits in a given association. Maybe such analysis should be done every year, every other year, every five years, depending on one’s priorities. This year, 2016, is that year for me. We don’t have to be the captive audience of an organization simply because we are told that we can’t do without an ATA certification.

    As for the antitrust legislation discussion, I would add that an organization such as the ATA should make use of an independent counsel to guide it (and us) on these matters, with public reports, open discussions, all in the spirit of critically thinking our way in and out of these conditions.

  • Patrick Weill says:

    The airline industry, the pharmaceutical industry, the health care industry, the oil industry, liquor and tobacco, in fact all big business everywhere tends towards monopoly unless there is strong and violent revolution. What a great post, Mr. Rosado. Of course I understand that you are not advocating this course of action. What about establishing unions for translators? Clearly the associations are not doing their job.

  • Luigi says:

    Tony, You are correct: What the law prohibits is collusion among parties. And something is seriously wrong if a “professional” association ignores the needs of the professionals it purportedly represents.

  • On the one hand, I am absolutely for discussing rates, for the right reasons and in the right arena. On the other hand, I am absolutely opposed to professional associations acting as rate setters or unions. We are businesses, after all. We set our rates according to our own business strategies and our most powerful way of defending the profession is simply saying “no” and moving on, while teaching others how to do that too.

    • mariosphere says:

      I agree with Jonathan on principle. We can also learn how things are done in other countries and use what we can. For example, the model many Latin American countries use for rate-setting is the establishment of a regulatory body (usually called a “colegio de traductores” or similar wording). This colegio sets rate ranges for a variety of services. It sounds interventionistic, but one virtue of this system is that society at large knows and understands that the translation profession is regulated (i.e. is held to high standards) and that only registered translators can practice the profession. As a result, customers large and small always request translations be made by registered (or official) translators.

      I understand this system cannot be grafted as it is into our American economy, but it’s worth studying.

      • The only places I could see that being useful are court & medical interpreting. For the rest, pick your own clients, set your own rates, and if some clients go elsewhere, leave them be. They will either learn and change or they weren’t worth chasing in the first place. There are always plenty more.

      • mariosphere says:

        Jonathan, I’m all for free markets, but let’s look at other professions and occupations for a moment: I could take courses on electricity and home electrical circuits, etc. but I can’t go around making installations and wiring houses without a license. Now, how much does a licensed electrician charge? At least $55/hour, and that’s on the cheap end.

        Now, the authorities giving those licenses do not set rates or prices, that’s up to the marketplace to decide. The way I see it (and I live and work here in America), the translation profession needs a level of regulation to raise its profile. Right now, that exists in the form of so-called university certificates of translation, which are worth a lot of money to the universities that issue them, but they are worth nothing to the practitioner because a) the supply of translators is far greater than the demand, and b) discerning clients will still prefer university- or college-educated translators (4-year degrees, not 1-year certificates).

      • What about management consultants or engineers? I cannot think of a single profession that has been created since 1900 that has attained regulation of the kind people want for interpreting. That might tell us something. Surely a more effective use of our time and money would be to proactively go out and demonstrate our value to clients. After all, we live in a massively global world, who better to take advantage of it than the quintessential international professionals?

      • mariosphere says:

        Jonathan, I don’t think you are listening. Nobody is arguing against going out and seek clients and demonstrate our value. That’s besides the point.

        About the ‘massively global world’: it’s a mirage. There’s no such thing as a globalized economy or globalized world. Laws and regulations are still enacted and enforced nation by nation. International organizations, for all their prestige, still have to make sure that a nation has signed up on an international agreement or treaty before it can be enforced within the boundaries of said nation.

        Take antitrust laws, for example. Or fair advertising rules. They’re not universally the same everywhere.

      • Oh I am listening very closely. As I said at the top, we absolutely should talk rates, although I perfectly understand the reticence of some associations to encourage it.

        My point is that it is precisely when we add value that we don’t need protection. In fact, there may be a point when we don’t even need to talk rates.

      • Sorry, I meant 1940, not 1900. The main point still stands.

    • Luigi says:

      Tony’s post in no way recommends that professional associations should set rates – among other things, he recognizes that they cannot do so.

  • Amparo jimenez says:

    Excelente artículo.

  • mariosphere says:

    I forgot the bit about management consultants and engineers. I may have a degree in civil engineering, but I can’t just go about designing bridges and roads without the proper authorizations, licenses and approvals. As for consultants, everybody these days is calling herself a management consultant, a life coach or a social media expert. Sorry for lumping all of them, but I take a dim view at vague titles.

  • […] Are we protecting our profession? Part 1. […]

  • […] Dear Colleagues: Every now and then something happens in our profession that makes me wonder if we are truly doing what is best for all of us: individually and collectively as interpreters and translators. In fact, this happened recently when I learned,…  […]

  • Why don’t all American translators and interpreters quit the ATA? Found a new one instead? Seriously. Why should there be only one syndicate protecting the interests of “workers in the industry”? It gives them way too much power.

    • mariosphere says:

      Lisa Ami, I don’t think the long-term solution is to quit the ATA and form a new organization. The original ATA started with 9 or 11 professional translators in the late 1950s, in New York City (my hometown). It took decades for the association of less than a dozen people to grow to what it is today.

      ATA is now stultified and some members are realizing that.

  • […] Dear Colleagues: Every now and then something happens in our profession that makes me wonder if we are truly doing what is best for all of us: individually and collectively as interpreters and translators. In fact, this happened recently when I learned,…  […]

  • Julia says:

    Tony,

    Thanks for the article – but I am a little confused, since I didn’t follow this closely from abroad. If I recall correctly, after the FTC’s anti-trust case against AIIC, we were not allowed to fix rates, but the Association was allowed to determine working conditions for its members. Has anything changed in legislation? Or is this a case of the ATA wanting to be more Catholic than the Pope? And if the legislation hasn’t changed, then we are certainly allowed to talk about historical average rates. The VKD in Germany publishes their historical survey every so often, and one came out fairly recently.

    • Julia, nobody wants to fix rates. It is about fighting for your members and the profession and acting like a real professional association. The legislation has not changed, and obviously, they are not interested in any changes that could benefit the profession.

  • oxana says:

    The fact that ATA houses labor i.e. interpreters and management i.e. agencies under one roof should tell you all you need to know in addition to its tacit suppression of any discussion of remuneration or working conditions.

    Consider the fact that NAJIT recently refused to allow key immigration contract interpreters, who were instrumental in
    spearheading the united front facing down the threat to their livelihoods presented by the new EOIR contract holder, to join a panel in the upcoming conference.

    • Carmen Cordero says:

      Oxana, you should get all the facts before posting something that serious about NAJIT

      • oxana says:

        Carmen, this is a topic that I happened to be quite well informed on from sources directly involved but I would be happy to have you correct me or expand on or update me with any facts that you care to present.

  • […] e non solo, o almeno si spera. E dato che casca a fagiolo, post bonus che parla proprio di (mancata) determinazione delle tariffe da parte nientemeno che dell’ATA […]

  • Hi Tony and thanks for this post (and everyone else for your comments!). A few points from the Board member perspective:
    -We (ATA) will be offering a webinar on the anti-trust compliance policy within the next couple of months. Definitely plan on attending that if this issue interests you

    -We know that the FTC does go after small potatoes; the risk of an action against ATA is not a theoretical one. Here’s an example we included in the policy commentary: the FTC pursued an action against the Music Teachers National Association for “declaring it unethical for its members to solicit teaching work from other music teachers.” No kidding. These are primarily people who teach piano lessons for kids out of their homes a few hours a week. I agree, it’s absurd. But I also don’t want ATA to be the next MTNA, and expending tons of resources (financial, time, energy, reputation) to defend against that kind of thing.

    -The new policy is, in fact, driven by ATA’s desire/need/responsibility to protect our members, in the sense that lots of ATA money, and even ATA’s continued existence, could be in jeopardy if we ran afoul of US antitrust laws. I’m not entirely opposed to the idea that “if this were tested in the courts, maybe the law would have to change.” But the nuts and bolts question is: how will that test case be funded? Do you want your member dues going to a legal defense fund for that type of thing?

    -It’s all about the forum. Remember that all of these restrictions apply to *ATA forums*. What you talk about outside the bounds of ATA is totally up to you. Because professional associations bring together many people who do the same type of work, we are held to a higher standard of non-competition than individuals are. But outside ATA forums, the onus is on you to comply or not.

    Thanks for listening!

    • oxana says:

      Ms. Mckay,

      Discussing what the range of fees is and what constitutes normative business practices and working conditions is suddenly going to get hundreds of independent contractors colluding to synchronize their terms and fees? Have you even considered that it might be precisely ATA’s complete suppression and censorship of these topics that gives the corporate members of ATA carte blanche in staging the race to the bottom in depriving interpreters and translators equitable income and dignified working conditions in accordance with our profession’s best practices?

      You “don’t want want ATA to be the next MTNA”, you claim it’s all about “ATA’s desire/need/responsibility to protect our members”. You are welcome to your opinions and worries. I’m not so sure you are welcome to impose them on all of ATA’s long suffering dues paying members. Maybe your interpreter/translator members don’t want you to protect your corporate members from their demands for equitable pay and professional working conditions any longer.

      Have you put this up to a plebiscite amongst all members?

  • Hilda Estrada says:

    Dear Tony,

    We appreciate your thoughtful article
    once again, on point.

    It behooves all professional interpreters
    to get certified and to perpetuate an
    open dialogue regarding suitable workplace conditions.

    It is the individual interpreter that needs
    protection and not current associations
    that have historically done nothing to better our profession.

    It is our sincere hope that all existing associations and organizations can rally up in favor of improving our profession to create long lasting change.

    Respectfully,
    Hilda, CA
    EOIR Contract Interpreter

  • The only way to force ATA to change its way is to hire an expensive lawyer, who will write a threatening letter to ATA. I alone forced ATA to change its discriminating bylaws against associate members in 1997, when I hired such lawyer, he wrote 2 page letter to ATA, and I served the existing board and president at the conference in 1997. It was fun.
    They changed the bylaws immediately.
    Before that I tried to convince them to do the same for several years by being nice. Nice does not work with ATA, but a brutal legal force scares them like chicken little.

  • Comonal Sensite says:

    The counterintuitive (and funny) thing is that discussing rates in the open contributes a lot more to decrease them than to increase them.

    The rationale for that is that we are wired to always try to outbid our competitors. It is in our genes.

    If we know for a fact that our competitor will bid 100, our knee-jerk to win the business is to bid 99 not 101.

    So sharing rates will certainly help to push them down, not the opposite.

    • Maksym Kozub says:

      Not necessarily. I never compete on a price basis; I prefer to compete using unique skills in certain subject areas etc.

    • Richard says:

      No, Mr. Anonymous, it is not human nature which produces fighting for a share, it is the system, Call it whatever you want, but translators just want to translate and make a living with it, not push anyone down, that’s the interest of those who profit from our work.

  • “What you talk about outside the bounds of ATA is totally up to you. Because professional associations bring together many people who do the same type of work, we are held to a higher standard of non-competition than individuals are. But outside ATA forums, the onus is on you to comply or not.”

    Does this mean that spouses are free to discuss translation rates, for example during pillow talk, even if one or both of them are ATA members? Please say yes! If so, I am greatly relieved because I mentioned that rates being paid these days by translation agencies to translators are really lousy to my wife the other day, and I even quoted actual numbers. So I was not breaking the law in your estimation? I certainly don’t want to be hauled to jail for not complying with the law as the ATA interprets the laws in a country that supposedly affords freedom of speech to all of its citizens and residents, even if they are ATA members.

    Incidentally, I was contacted by a translation agency last week that proposed to me to work for 1 cents for it as a “copy writer”, which in this case meant fixing machine translations for the above-mentioned amount. I went to their website and I saw that they were boasting to “have” 7,000 highly qualified translators. When I called the “LSP” and asked the person who left a message (her name is Aida, like in Verdi’s opera) in my voice-mail how is it even possible to have so many highly qualified translators, she said “Oh, we just use the ATA database, that’s how we found you too”.

    Congratulations, ATA, you are doing a fabulous job for “the translation industry!

  • […] Dear Colleagues: Every now and then something happens in our profession that makes me wonder if we are truly doing what is best for all of us: individually and collectively as interpreters and translators. In fact, this happened recently when I learned, like many of you, that the American Translators Association had revisited the antitrust…  […]

  • […] clearly observes antitrust legislation as is, without questioning it,” wrote Tony Rosado in his blogon March 29, […]

  • […] When applied today, the rules conceived to protect the weak from the powerful, provide shelter to mu… […]

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