July 11, 2019 § 13 Comments
If you are a regular reader of this blog you know my position regarding California’s AB5 bill that will benefit independent contractor interpreters who are currently prey to abusive practices by many agencies that treat them like employees but provide no labor benefits in that state. If enacted into law, this legislation will protect those who cannot move or seek other sources of work due to personal circumstances such as a sick child, and elderly parent, or unaffordable individual health insurance coverage. (For more information, please see my post of June 12).
I have no problem with those colleagues who, acting as small business owners, not professional interpreters, seek to influence the legislature and kill the bill. They have a legitimate right to do so, just like I exercise my right to support the bill and advocate for its passing.
The situation turns problematic when an association the size of the National Association of Judicial Interpreters and Translators (NAJIT) apparently injects itself into a controversy that affects many of its members on both sides of the bill, and throws its support behind one sector of its membership: the agency owners.
It concerns me that a national association decided to participate on a state-level issue in a way that goes beyond its mission to advance the quality of the services provided by its membership, and the professionalization of interpreting, and decides to adopt a position fueled by the commercial interests of some of its small agency members, and those who have listened to the one-sided arguments by these businesspeople, and erroneously think the legislation would harm them. A professional association should concern itself with continuing education, position papers, and support of its membership’s efforts to become a recognized profession, not a commercial entity or a merchant guild. It should not support the other side either.
Independent contractor interpreters have the support of the California Labor Unions and Guild; Agency owners are represented by the Association of Language Companies (ALC), an entity conceived to advance their business interests, not the professional status of individual interpreters or translators. On this issue, agency owners who are NAJIT members should turn to those who share their interests in ALC.
Professional associations should refrain from taking positions and acting on behalf of a membership segment at the expense of another. From the beginning of this controversy, at the time of the Dynamex decision, the American Translators Association (ATA) took itself out of this issue by announcing they would not take sides. That was the right decision, they did not put some members over the rest.
The second thing that troubles me is the way NAJIT got involved in this issue. The membership was not informed of any discussion about this support; as far as I know there was never a Board meeting to deal with this issue. No decision was ever made, and the Board was not consulted. For all these reasons, it is very disconcerting, and extremely troublesome to see NAJIT’s Chair actively participating on these actions through social media, by letting others use the name of NAJIT in a way the public could think the association and its Board were behind these efforts, and (according to social media) by actively attending the legislature’s session, not as a private member, but representing NAJIT (there are social media posts showing her approval of these actions). In fact, to foster trust on the leadership, I believe Board members should remain neutral even as individual members of the association for as long as they are part of the Board. I have no way to know if any other members of the Board participated in such an unfortunate incident, because there is no evidence they did, but if this were the case, they would have acted ultra vires as well, and without discussing these actions as a Board.
Fortunately, the California Senate’s Labor, Public Employment and Retirement Committee passed the bill on Wednesday, and it now moves to the Appropriations Committee before it can reach the Senate floor. Assemblywoman Lorena González (D-San Diego), author of the bill, added business to business services to the list of exempted occupations. This can be used to escape the law by some of those who claim the legislation will put them out of business.
It is my sincere hope that NAJIT and its Board, thinking of its membership as a whole, publicly take a position of neutrality and clarify they will not support some of its members over others.
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.
August 29, 2018 § 6 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.