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.

End of the year message to all: Some justice to the profession.

December 29, 2015 § 5 Comments

Dear Colleagues:

This is my last post of the year and for that reason I considered several topics to discuss on this entry. I thought of writing a review of the year from the perspective of our profession, I pondered the idea of sharing with you the professional conferences I will attend in 2016, I weighed the usefulness of presenting an ethical issue for discussion, and I was having a very difficult time deciding what to write about.  Fortunately for me, it all changed when a couple of days ago I learned that one of the translation/interpretation agencies that treats our colleagues, and for that matter our profession, like garbage was slammed by the United States Federal Government for violating the labor laws of the U.S.

Once I read the news, I knew I had to write about this topic that brewed throughout the year and finally started to show concrete results during the last quarter of 2015: How multinational agencies are destroying the profession by bastardizing it as an “industry”, selling a mediocre service to both, the careless and the good-faith naïve clients, and how they denigrate interpreters and translators by offering miserable fees and unconscionable working conditions.  Now we know that they also disrespect the rule of law.

A Wage and Hour Division investigation found that Monterey, California-based Language Line, LLC failed to calculate properly overtime payments due to employees working beyond forty hours a week, a violation of the Fair Labor Standards Act, so the Division ordered this agency to pay more than $500,000.00 U.S. Dollars in back wages and damages to 635 victims. On a separate investigation, the Division looked into the company to determine whether Language Line, LLC paid its translators and interpreters required prevailing wages and benefits when working as professional service providers on federal contracts covered by the McNamara-O’Hara Service Contract Act. When the division determined that Language Line did not comply with the law, the U.S. Government directed the language services agency to review its United States Government federal contracts to see if they were in compliance with the prevailing wage and fringe benefits law applicable to these contracts. The review showed that Language Line LLC had violated the law, and as a result, 2,428 interpreters and translators throughout the United States will receive nearly $970,000.00 United States Dollars in back wages and benefits. The law requires that businesses pay at the minimum these wages and benefits, it also prohibits employers, like Language Line, LLC, from retaliating against interpreters and translators for exercising their rights, and it requires that all businesses maintain accurate records of wages, hours, and working conditions.  The total amount that Language Line, LLC underpaid its interpreters throughout the United States was $1.47 million U.S. Dollars according to the United States Department of Labor.  There was a little justice in this case. [http://globalnation.inquirer.net/134051/translation-firm-must-pay-1-47m-to-2400-underpaid-workers]

On December 17 we all learned that the California Department of Insurance arrested nine people involved in a complex scheme allegedly targeting more than 230 workers’ compensation insurers and self-insured employers. Among these selected group or people, we found siblings Francisco Javier Gómez Jr., and Angela Rehmann, owners of G&G Interpreting Services, an agency that allegedly fraudulently billed more than $24.6 million United States Dollars for interpreting services for injured workers with Hispanic surnames.  G&G Interpreting Services reportedly had a substantial operation providing Spanish language interpreting services across the Los Angeles California basin and southern California for injured workers receiving healthcare services through the workers’ compensation system. California Insurance Commissioner Dave Jones said in a statement about this agency’s alleged crimes: “…When those providing services to injured workers line their pockets by ripping-off workers’ compensation insurers through fraudulent overbilling practices, and charging for services that never occurred, we all end up paying…” [http://www.insurancejournal.com/news/west/2015/12/17/392443.htm]

Dear friends and colleagues, we can see these two examples just from this month, as an unequivocal sign that we have to be extremely careful as to who we work with, and concretely, whose contracts we are going to be associated with. Remember, your signature could appear on a dotted line next to the crook’s signature.  Of course I am not saying that all interpreting and translating agencies are bad or practice criminal activities against their clients or professional service providers; as you know, for legal reasons I even need to remind you that the G&G Interpreting Services case has not been decided in court yet, but what I can tell you is that once again we can confirm that timeless saying: “If it quacks like a duck… it probably is (a duck)”.  We close the year on this high note for the profession from our point of view, but with a terrible message to the general public that does not know the difference between a fraudulent interpreting agency, a bottom-feeder low paying agency, and a good professional interpreter like you.

We need to be careful and very selective on what we sign. We must be courageous and firm when setting our professional fees and working conditions, especially when dealing with those multinational conglomerates who despise our profession to the point of calling it an “industry” instead of a profession. We need to know that as long as we abide by the legal system, the law is on our side, not theirs. I truly invite you to share this entry, the original articles on these two horrendous examples of everything that is ugly in our professional environment, or both, with your clients as an excellent means and opportunity to educate them on the benefits (professional, ethical, quality of service and even financial) of hiring you instead of a bad interpreting and translation services agency.  This is public record and we can use this information, we can call these perpetrator and alleged perpetrators respectively by their names, and we should. Do not lie or embellish the facts, they are very powerful as they really happened. The end-client needs to know the truth and we should seize this opportunity.

This is a wake-up call to many interpreters and translators, and a validation to what many of us have been saying for years.  It is time to shun the conferences where they invite these individuals to be presenters, panelists, and even keynote speakers, it is time to reconsider our membership in professional associations that allow these type of entities to be members even though they are not interpreters, translators, or even human beings. It is time to reward conferences and professional associations that do not allow them into the conference hall or into the ranks of the organization.

Finally, I did not want to end 2015 without tipping my hat to the many colleagues who fought so hard to better the profession throughout the year and save it from the claws of those who want to shed the professional part of our work and turn it into an “industry”.  Thank you to those who stood up against SOSi and especially to those who are still holding back and not giving up o giving in. Thank you to those colleagues who are fighting for fair professional conditions at the immigration hearings in the United Kingdom. Thank you to our colleagues who are still fighting against the abuses within the Workers’ Compensation system in California. Thank you to those who stood firm when apparently disrespected by a judge who was appointed Chair of the Language Access Advisory Committee in New Mexico. A special thanks to our always-remembered colleagues in the United Kingdom who continue to fight against Capita: You are an inspiration to all of us. Thank you to each and every one of you who turn down assignments every day because of the insulting low fees, outrageous working conditions, or lack of professionalism of the agencies. It is because of you that we are still fighting against the commoditization of the profession, against the exploitation by those who offer VRI services and want to pay peanuts, against incompetent bureaucrats in government offices worldwide, and against the 20-year old ignorant who works for the agency for a fast-food type of wage and calls you to tell you how to do your professional work as an interpreter or translator. To all of you, the good, professional interpreters and translators: have a very happy new year!

A lesson to all interpreters.

October 12, 2015 § 9 Comments

Dear Colleagues,

We have seen over the past few weeks how a grassroots movement by some of our colleagues has produced results that until recently would have been considered unrealistic.  I am referring to the freelance United States immigration court interpreters who, so far, have refused to accept the contractual conditions offered by a new federal government contractor that does not deal with them as language professionals but as unqualified laborers.

For many years, federal government contractors did their bidding and earned contracts from the immigration courts (EOIR) based on a widely accepted assumption that immigration court interpreters would take any fee offered to them, regardless of how low it was. This is how the bidding process worked and produced the abhorrent working conditions that LionBridge imposed on the interpreters, including extremely low fees, absurd cancellation policies, unprofessional treatment where the interpreters’ word had no credibility when their word conflicted with court staff, and even a penalty for those who wanted to be paid on time.  For these reason many interpreters left, or never entered, the immigration court interpreting field. It was just unattractive to those who wanted to make a higher income and expected to be treated like professionals.  Even now, the testimony of several attorneys reflects this reality when they comment that, many times, the quality of the interpretation in immigration court was lower than at those courts managed by the Administrative Offices of the Courts.

This is the environment that SOSi, the new bidder, encountered when they came into the picture. No wonder they pushed interpreter working conditions to a low never seen before.  They assumed that this time would be like the others and interpreters would take the offer, no matter how unfair and insulting.  They were wrong.

You see, friends and colleagues, a few things have changed since the last time the contract was awarded to LionBridge. By the time SOSi bids for the EOIR contract, there were more interpreters with a formal education than before; these colleagues had entered to the world of immigration court interpreting for many reasons: to gain some professional experience, to put their name out there, to have some income to begin to repay their student loans…

They worked as immigration court interpreters, but they were not there to stay; their time working over there would be a step towards a more fulfilling and better paid career. They did not plan to stay, but while they were there, they shared their ideas about professionalism and their personal dreams with the other interpreters who were already there. They inspired many of them to study to better themselves as interpreters, to go to a community college and study interpretation, to take a state or federal court interpreter certification exam, to become certified as healthcare interpreters, and so on.  The crowd that SOSi encountered did not look much like the one its predecessor found some twenty years earlier. The result: They would not put up with worse working conditions than the horrendous ones they had suffered from the previous contractor, so they refused to sign the contracts, and the deadline for SOSi to take over interpreting services came and went without fulfilling their obligation because of their lack of the most precious and indispensable asset to provide interpreting services: the professional immigration court interpreter.

These colleagues took advantage of things that were not there the last time the contract was up for bids: social media, communication and peer support, information about the working conditions of other court interpreters working somewhere else, and the experience of our colleagues in the United Kingdom with another agency devoted to the degradation of the professional interpreter: Capita.

The refusal to sign these individual contracts happened all over the United States, the voice got louder, blogs spread the word and informed some not-so-well known facts about the contractor (https://rpstranslations.wordpress.com/2015/08/31/disrespecting-the-immigration-interpreter/) virtual forums were created, professional associations intervened, the media wrote about this issue in English (http://www.buzzfeed.com/davidnoriega/immigration-courts-could-lose-a-third-of-their-interpreters#.sopPZ5w26) in Spanish (http://www.eldiariony.com/2015/10/07/disputa-laboral-de-interpretes-amenaza-con-agravar-demoras-en-tribunales-de-inmigracion/) and discussed it on the radio (http://www.scpr.org/programs/take-two/2015/10/09/44770/backlog-at-immigration-courts-could-grow-with-a-pa/)

The contractor, probably frustrated by this “unexpected occurrence”, apparently decided to get help from local language services agencies all over the country to see if, by buffering this link between them and the professional immigration court interpreter, some colleagues would agree to sign the individual contracts, and, unless there is some legal figure no interpreter is aware of, as a result of their signature, they would become contractors of a sub-contractor (the local agency), putting them one more step away from the entity that won the contract: SOSi. In fact, I have heard from several interpreters in different cities who have contacted me with their concerns about the contents of this contract that has been offered to them.

Although the following is in no way legal advice, nor is intended in the slightest to be such a thing, I have decided to give my opinion about some of the portions of the contract as they were presented to me by my colleagues. Remember, this is just my opinion, based on my many years of professional experience as a professional interpreter, and my years in law school.  Your opinion may be different and I will not dispute such a thing.  Let’s see:

The most common concern about our colleagues can be summarized by this colleague’s observations: In general, I have my doubts that my previously negotiated  half/day and  full/day rates would really be respected, in light of SOSi’s option to pay these “…unless EOIR determines that using a different CLIN would result in less cost to the government.”  What does this mean in plain English?

There is a legal principle in civil law (and contracts are civil law) called the parol evidence rule. This principle states that all negotiations between the parties to a contract that took place before or simultaneously to the signing of a contract, that are not clearly spelled out on the document, are non-existent and therefore, non-binding and unenforceable. This means that all “negotiated rates” that are not in writing are irrelevant. (https://en.wikipedia.org/wiki/Parol_evidence_rule) (http://thelawdictionary.org/parol-evidence-rule/)

A follow up question to the last comment was this one: what is a CLIN?”

Although I do not know for sure, I believe that “CLIN” in this context refers to “Contract Line Item Number” This would mean that if EOIR finds a legal way to pay less than the “previously negotiated rate” or If other interpreters are willing to work for less, the pay could be impacted.

Some interpreters are concerned about the travel expenses when they are asked to go out of town to interpret a hearing.  Apparently, the section of this contract that addresses this issue does not mention the English<>Spanish interpreters.  As far as travel expenses, keeping in mind that English<>Spanish interpreters cover the immense majority of the immigration cases, my feeling is that they could be leaving the English<>Spanish interpreters out of the equation because they feel they can meet these needs with Video Remote Interpreting (VRI) and with local folks if needed.

It is also worrisome that said contract seems to emphasize “telephonic interpreting”, indicating that this service will be paid at an hourly fee. As we all know, like all professional services providers, interpreters sell their time.  Getting paid for the time interpreted based on an hourly pay would result in a detrimental situation for the interpreter, because nobody is paying for the time it takes to this professional services provider to get ready to do the rendition (travel to the courthouse or detention center, setting aside big chunks of time to do the assignment, etc.)

According to some colleagues, SOSi appears very firm on its insistence that interpreters compete for offered work assignments on a generally accessible “available assignments” website.  In other words, interpreters would no longer be contacted individually, as with Lionbridge, to accept or reject offered assignments.  Apparently, SOSi’s recruiters have explained the validity of this policy as a way to avoid having to hire assignment coordinators.

In my opinion, Immigration court interpreters must keep in mind that SOSi’s contractor history and system is based on bidding subcontractors. That is how most Department of Defense contracts work (and remember, they are primarily a defense contractor) so I don’t see them changing strategy. All interpreters could be considered subcontractors bidding for a job every time there is a need for an interpreter.

This is the most critical hour for our immigration court colleagues because this is when experienced agencies and contractors put in practice their well-rehearsed tactics.  Some interpreters may decide to sign a contract even though the “promised, negotiated fee” is different from what the contract states, or it is hidden in an appendix or table. Immigration court interpreters will only achieve the dignified treatment they deserve, and has been denied for so many years, if they continue to speak with one voice, and it will get more difficult unless those with more experience and formal academic education step in and help their colleagues.  We must remember that fear can derail any project, and the immigration court interpreters are not a homogeneous group. Unlike conference interpreters, many of them interpret at a questionable quality level, others may think, deeply inside, that the ridiculous fees offered by the contractor are not so bad, some may live from paycheck to paycheck, and may decide to sign the draconian contract; and some of them may not really be freelancers, but employees with no steady job.

The truth is, that to get to a professional fee, the interpreters have to be willing to stay away from the immigration courts for as long as it takes, and during that time, if they are truly freelance interpreters, they will find their income doing so many other interpreting assignments. If they are really independent professionals, they will have to come to terms with the realization that well-paid immigration court interpreting will not be an everyday thing; it will be one of many other interpreting assignments that the true freelancer will have to cover. EOIR is a client. It is not an employer.

The contractor, SOSi, LionBridge, or any other has a responsibility to their shareholders, and that is fine. The federal government has budgetary limitations, and that is fine.  It is because of these undisputed facts that the independent immigration court interpreter needs to understand that to get the financial resources to cover his professional fee, the service will have to be more efficient. Less hours of work at the EOIR, but better pay.  That is how the freelancing world works, and all interpreters will need to understand it; otherwise, the lesson learned will not be the one this entry begins with, but instead, the lesson will be that once again, because of the interpreters’ lack of determination and unity, things will stay the same.  I ask my dear friends and colleagues not to waste this unique opportunity in their careers.

Although these lines merely contain my personal opinion, and in no way this pretends to be any legal advice for anybody, if I were facing the situation these immigration court interpreters in the United States have in front of them, I would hold on to signing anything until it is clear who stays and who does not. If SOSi stays, to become attractive to the interpreter community, they will probably make some changes to their contractual policy towards the interpreters. If there is a new different language services agency, I would wait to see what they have to say first. Also, for my peace of mind and for the safety of my professional future, I would never sign a contract after talking to the HR people. I would ask for the legal department because I would need to understand, and know, the contractual terms, and the likelihood that they will be honored by the language service provider. I now invite you to share your opinion with the rest of us, and for the benefit of as many interpreters as possible.

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