We must protect the interpreter, not the middleman.
June 12, 2019 § 11 Comments
Think of a colleague, anywhere in the United States, who is battling a devastating illness and cannot get the treatment she needs because she has no health insurance, and medical expenses are so high she cannot cover them. I am sure you know an interpreter who has tried to get a job because he is worried about retirement years from now, but cannot get one because nobody is hiring. Language service providers want independent contractors because they have no legal obligation to provide employment benefits: health insurance, retirement plan, paid holidays and vacation, maternity leave, worker’s compensation insurance. If you prefer, look very carefully at your interpreter colleagues who have a sick parent, a disabled child, or another powerful reason to stay where they now live, and for that reason, they have to interpret for the agencies in town (local and multinational) and they do it in silence because they are afraid of losing these assignments, even when they are poorly paid, and they have to endure terrible, and sometimes humiliating working conditions.
Of course, you can always look at your own practice; I invite you to do so and honestly answer these questions: Do you enjoy having to check in and out with the agency every time you do an assignment? do you feel comfortable asking the person you just interpreted for to write down the hours you interpreted and to sign the form so you get paid by the agency? Do you find amusing having to spend hours on the phone and writing emails so you can get paid for a last-minute canceled assignment the agency does not want to pay? Maybe some of you like staying at the venue after interpreting is over because the agency makes you stay for the full time they retained you, even though all your work is done. Perhaps your definition of professional services includes cleaning up files or making photocopies until your time is up. Do you like it when the agency prints you business cards under their name and forces you to give them to the client? Do you like dodging all clients’ interpreting services questions by referring them to the agency every time? How about micromanaging your time on the assignment?
I doubt you enjoy any of these things, but even if you do, please understand that these intermediaries are taking advantage of you. They are forcing you to perform as an employee without paying you any benefits. Agencies distract you by telling you what a wonderful lifestyle you have, how flexible your schedule is, and everything thanks to them, your benefactors who find you work while you do not even lift a finger.
This is what the California State Legislature is trying to stop by forcing those employers who treat their “independent contractors” as employees to provide all benefits and protections people who do what these interpreters do for the agencies are legally entitled to. Think like an interpreter, stand up for your colleagues and the profession. Do not buy the arguments agencies are propagating. They do not see this legislation from the interpreters’ perspective. They see it from their business perspective.
For a long time, agencies have enjoyed this cozy business model that lets them charge their client for your service, pay you a part of it, and get you to do anything they want without incurring in any human resource expenses. It is a win-win situation for them. It is an abusive scheme for the interpreter.
Big multinational agencies are campaigning hard to defeat these legal protections not because they will “destroy the industry” as they put it, but because they will lose their golden egg goose. There will be no more freebies. They come at you with their lobbyists and make you believe they are on your side, they portray themselves as your savior and use scare tactics to make you think there will be no work for you if they are forced to lower their profits by living up to their legal and moral obligations to the interpreters.
Freelancing is not going to end after the bill becomes the law of the land in California or anywhere else. I am a freelance interpreter and I am not afraid. I do not work with these agencies, big or small, who now claim they are on a quest to save us all. New legislation or status quo will not impact my practice, and it will not impact that of most colleagues I work on a daily basis; however, leaving things as they are, giving back these agencies a position of power over the interpreters who work for them, will keep our less fortunate colleagues in the same deplorable conditions they have been working for all these years. This is a decisive moment. Multinational agencies and their lobby know it. They will fight the State of California with everything they have because they know the Golden State is a place where they can be unmasked and lose their privileges. Interpreters have organized labor backing their efforts because there are unions and guilds in California. Other States do not have them. The middleman knows that California is a decisive battlefield and they are spending money and sending their PR people to “convince” interpreters that defeating this legislation is best.
They argue they will not be able to hire interpreters because it would be too expensive. That many agencies will not survive and interpreters will lose a source of work. That is the point. The bill will only be successful when this serf-owner business model is erased. Will interpreters be more expensive because of the labor benefits? Yes. Interpreters deserve these protections. Agencies will either close or adjust their business models to comply with the legislation. Will agencies hire less interpreters? Of course, but the need for interpreters will not go away. There will be many more interpreters hired directly by clients. Is this going to hurt small agencies? It should. Small agencies should not exist in this business model because the essential condition for their survival is the denial of workers’ rights under the law.
Complaints that the legislation has exempted other professions like physicians and attorneys, but not interpreters are nonsense. Doctors and lawyers are well-established professions. Nobody would ever think of calling a “medical agency” and ask for a brain surgeon for tomorrow at 8:00am. If we want to be treated like these professions, we need to look like them. First step: get rid of the middleman. I know, some will say: “but…hairdressers are excluded and they are not a profession like doctors and lawyers” That is true and it is wrong. They should be covered by the legislation. The difference is: They got a better lobbyist and got their sorry exception in detriment of the people providing beauty services.
What about the argument that smaller agencies will not be able to stay in business because they will not afford it? In my opinion, these so-called agencies are not really agencies; most of them are a solo operation where somebody with connections acts as a referral service. I find this dangerous because these “agencies” just want a warm body with the right language combination for the assignment. I do not get the impression that messages on social media that read: “need French interpreter tomorrow at 2 pm” project exemplary quality control. Moreover, these people are not an agency, they should think and act like professionals and do what I do, and many of my colleagues do (all doctors and layers do the same thing): When your client asks for interpreters in a language combination different from mine, I just suggest a list of trusted experienced professional friends I am willing to vouch for, and let my client decide who he will retain and for what fee. I do not get involved, I do not get referral fees.
Finally, to the argument the ABC test is impossible to overcome: This is false. It can easily be overcome by a real independent contractor relationship. That is the point. If any agency could disguise a de-facto employee as an independent contractor the law would be pointless.
I understand what multinational agencies, their lobbyists, small agencies, and those solo practitioners who call themselves an agency without actually being one are doing. They are defending their very lucrative status quo. They have a right to fight for it and save their “industry”. As always, my concern are the interpreters and the profession, and from this perspective, I see the new California legislation as a step forward to our professionalization because, on top of protecting our colleagues in need, it will weaken the agency model, a necessary condition to become a true profession worthy of a place in the pantheon of professions. This is the time to listen to our colleagues and defend our profession, not the middleman interests.
Well said, Tony. Thank you.
Phenomenal statement, totally cogent while describing to a ‘T’ the many issues we deal with. thank you for writing this.
I don’t entirely agree with the strictly pessimist view of the ‘independent contractor’ status as it applies to California’s legislation. The demand and lack of supply is driving some of the overreach you are discussing. It is also the lack of transparency. Agencies are emboldened to charge high sometimes obscene commissions for assignments because their clients don’t maintain long-term relationships with interpreters. That relationship has value associated with it. If small agencies go out of business their clients won’t get service. Then more legislation to remove the need for licensing will prevail. My position is pro interpreters need to learn how to set rates and educate themselves about what the market can bare. You have the power to work for anyone you like. As far as people who need healthcare, well, that’s another complicated discussion about how to move to a single payer system.
I don’t entirely agree with this. I work both directly for clients and for agencies. A lot of these agencies are actually providing medical services and the provision of interpreters is an ancillary service. Sometimes I help them find someone for a language that is not common. I usually don’t charge for that. The largest job that I have just finished recently was a direct client situation involving direct contact with the parties to a civil law case. The reason I don’t agree with the making everyone an employee is twofold– First of all, with the law the way it is right now that gets rid of the opportunity to deduct automotive, airline or mileage expenses, continuing education, software, dictionaries, etc. Second, it almost forces everyone to work for one source of income. otherwise, you have a tax mess. My work sources right now are unlimited. One person could decide not to use me, but he or she couldn’t get rid of the other income sources.
Tony I must respectfully and professionally disagree with your argument as it is one-sided.
Agencies are not middlemen, they are our agents. They perform valuable services in exchange for a portion of the fee. This isn’t scalping tickets, or arranging to make a killing out of a deal. They are seeking clients for their business and in turn, we cover those assignments. Agencies allow for interpreters to maximize their earning potential during the day. Most interpreters come into this field without the business skills necessary to compete for direct clients. Even those who do have direct clients, balance their workweek with a combination of court, agencies, and direct clients. Time spent marketing and networking is time away from earning an income. Interpreters benefit from the reputation of the agency. In reality, agencies aren’t employment companies, they are referral services, splitting the fee with the contractor. The Contractor negotiates for their fee and the Agency earns its portion.
Esther, I understand your perspective and applaud the time and energy you are investing to get it to prevail. I see your position as the view of an agency, not an interpreter. Agencies have a right to state their position and fight for it. My blog is always about the professional interpreter. California’s legislation will protect many colleagues who have no choice but to work for an agency. Life is tough and many have personal and family circumstances that leave them no option but to work for an agency that treats them like employees without getting any benefits. I am concerned about them. This legislation will protect them. Professional independent interpreters will not be impacted by the new legislation. They will pass the ABC test, make some adjustments, and that is all. It is the agencies that will lose their comfortable status; that is why they have been lobbying against this legislation for over a year since Dynamex. True professionals should not work through agencies. If we are going to be treated like doctors and lawyers, we need to start working like them. We must have direct clients; otherwise, we will never be viewed as a profession.
Having a direct client or working through an agency, that’s a choice an interpreter makes.
Lisa, thank you for your comment. You are right. Unfortunately, professional service providers do not work through agencies, merchants do. It is a matter of how we want to work and be viewed by others.
We should be free to offer our services as professionals through agencies and individually without any limitations. A lot of these agencies actually obtain both language services and the professional services of medical doctors for cases involving injured workers and for P I civil law suits.
Professional interpreters must have the right to choose whether they want to be employees or remain independent. I don’t think this has anything to do with the well-being of the interpreters. I was waiting for some change that would result in the State of California getting additional tax money from the interpreters and some other professionals, and here it is: There will be a requirement from us to incorporate in order to remain independent. The minimum tax for an S corporation is $800 per year. There is an exception for the first year. After that, the greater of the $800 or 1.5% of the corporate income is charged. You must first pay the fees to incorporate. You must then declare the S status. This has two effects: It lowers the corporate tax from 8% to 1.5% or $800, which ever is more, and allows the members of the corporation to use a K-1 and bring the earnings and deductions (charitable, for instance) forward into the 1040 of each individual. I do tax preparation and do understand the process well enough to convert Partnerships and LLC’s into S-Corps. I could probably make a bunch of money, but I still wish they wouldn’t force us to do this to remain independent. I will convert my General Partnership, if need be. I don’t like it, though.
You do bring up excellent points, Tony, and I say this most begrudgingly, because I had thought I was firmly on the other side of the question. I no longer work with the local (abusive) agency who originally provided 100% of my work, but those who do get an entirely rotten deal. “Give us a time frame for every breathing second of your day. and if you forget something, we will not call you back.” Likewise if you habitually show up late for work, miss appointments and completely ignore protocol. Except…they DO call them back. (So few x,y,z interpreters, doncha know?) The end client also gets a bad deal. Sadly, the good ones are often single mothers, already struggling, yet reliable and professional. And you, my friends and colleagues, would be better off on your own. A shame you had to sign that non-compet. contract that threatens a fine of $10,000 plus court costs, isn’t it?