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.
This time of the year could be very dangerous for some court interpreters.
April 27, 2015 § 6 Comments
Dear Colleagues:
I just read a contract that one of the States in the U.S. is asking all court interpreters to sign if they want to continue to work in their system. The document is 38 pages long and it is full of legal terminology, rules, and sanctions that only an attorney can understand. This is not an isolated case. Because of political pressure and budgetary prioritization, court interpreter programs are getting less money from their administrative offices at the state level. In other words: There is hardly any money to pay for interpreting services at the state level in many states.
Although the Civil Rights Act is over fifty years old, it was only a few years ago that the federal government decided to enforce its compliance at the state level in the case of equal access to the administration of justice, regardless of the language spoken by the user of the service. When the federal government came knocking on the door of each of the fifty states, and told their state judiciary to comply with the law or lose the funds they had been getting from the feds, states started to look for a solution to this problem. In reality, up to that moment, the states were complying with the constitutional requirement to provide court interpreters in criminal cases, but in many states there were no court-funded court interpreters available for civil cases and other additional services offered by the courts to the English-speaking population. The message from Washington, D.C. was loud and clear: In order to continue to receive (much needed) federal funds, the states had to provide interpreters for all services they offered, not just criminal cases.
In some parts of the country the first problem was as simple as this: There were not enough certified court interpreters to meet the legal requirements; in other regions the problem was slightly different: There were plenty of certified interpreters, but the courts were not willing to pay the professional fees commanded by these (for the most part) top-notch interpreters in that state. These professionals had been there for years, but due to the low fees paid by the state court system, they were not even considering the state judiciary as a prospective client.
When faced with this dilemma, a logical and ethical option should have been to develop a program to encourage more young people to become certified court interpreters, train them, and then test them to see if they could meet the state-level certification requirements, set years before and universally accepted as the minimum requirements to do a decent court interpreting job. Some states’ needs could be met this way, but not all of them. For that reason, a second logical step would have been to raise the professional fees paid to court interpreters in order to entice those top-notch interpreters, who were not working for the courts, by making the assignment profitable and attractive. Finally, for those places where this was not enough, state courts could have used modern technology and provide interpreting services by video or teleconference. Administrative offices had to develop a plan, categorize the services offered and decide which ones required of an experienced certified court interpreter, find the ones that a brand new certified court interpreter could provide, and select those instances that, because of their nature and relevance, could be covered remotely by a certified court interpreter elsewhere in the state or even somewhere else. This process also needed that state court judges and officials acted within the constitutional system and asked their respective legislatures for the funds to comply with the federal mandate. It is doubtful that legislatures would risk losing federal funds by not approving such monies; and in those cases where the local legislators would not grant more funds, state court administrators and chief judges needed to do their job, and truly provide equal access to justice to all by reorganizing priorities, and perhaps sacrificing some programs, even those that were near and dear to a judge’s heart, in order to find the funds needed to meet this priority that is above most others, not just because of the federal funds that the state would lose in the event of non-compliance, but because those in charge of the judiciary should consider equal access to justice a top priority, and I really mean at the very top.
Unfortunately, my dear friends and colleagues, most states chose an easier way, even though it did not deliver what the Civil Rights Act intended. They decided not to rock the boat with the legislature and play it safe, they decided not to make true equal access to justice a priority by recruiting and training quality certified court interpreters, instead, they opted for ignoring the excellent professionals in their area by not raising interpreter fees, thus making the assignments profitable to professional interpreters. They decided to come up with a “plan” to keep the federal money in their accounts by making believe that they were complying with the federal mandate of equal access to justice. This is what many of the states decided to do:
Instead of recruiting and training new certified court interpreters, they decided to create a group of paraprofessionals who would “deliver” interpreting services. These individuals were drafted from the ranks of those who had always failed the certification exams, and by recruiting bilingual individuals with no interpreting knowledge whatsoever. States justified their decision by arguing that these individuals would receive the necessary “training” to interpret in certain scenarios of lesser importance, where people who had partially passed the certification test would be considered as professionally qualified (semantics vary from state to state but it is basically the same) even though in the real world they should be deemed as unfit to do the job. Moreover, bilinguals would be trained to “assist” non-English speakers with some administrative matters in the courthouse. Of course, this brilliant decision would set the profession back to the good old days when prevailing judicial culture was that knowing two languages was all you needed to interpret in court; but that was of little importance when balanced against the possibility of cancelling a court program that was politically useful to a judge or an administrator. This is how the “warm body next to the court services user so we don’t lose federal funds” theory was born. The spirit of the law was ignored.
There is as much quality and true access to the administration of justice when a person who failed the court interpreter certification test, or a bilingual court staffer, interprets for a non-English speaker individual as there is medical knowledge when the guy who failed the medical board sees a hospital patient, even if the appointment is to take care of an ingrowing toenail.
Of course, the process above taught court administrators a valuable lesson: court interpreting services was a good place to save money, a wonderful way to channel budget resources somewhere else, and a great way to avoid antagonizing the state legislature, because there would be no need to ask for more money to fund the program. This was the origin of the next step backwards: Fee reduction.
Court administrators did not stop here. They now knew that they could get away with more, so they decided to lower interpreter fees. In most cases the reduction did not come as a lowering of the fee itself; it was accomplished by cutting guaranteed hours, reducing mileage and travel reimbursement, changing cancellation policy, and by creating a new bureaucratic machinery designed to oversee what interpreters do minute-by-minute. Maybe it should be referred to as “to spy” instead of to “oversee”.
Fast forward to today, and you will find these huge interpreting services contracts in many states. The reason for them is not that court interpreters all of a sudden went bad and stopped doing the good work that they did for decades; these contracts are motivated by more reductions to the interpreters’ fees and by developing this super-protection for the state, leaving the freelancer with little or no defense before potential abuse by the court administrators. What other justification can these state contracts have when the federal court interpreter contract is a very short agreement, which usually does not change from one fiscal year to the next, and is drafted and developed individually by every federal judicial district?
These state contracts that court interpreters are expected to sign without the slightest objection, have been drafted by the administrative office of the courts’ legal departments; they have been amended to include any possible ways to reduce the interpreters’ real fee that the states missed when drafting last year’s contract, they include sanctions to interpreters who do not comply with sometimes ridiculous duties, without setting any process of notice and hearing; they are written in a complex style full of legal terms and ambiguity that only an attorney can understand.
I am very fortunate that I do not need to sign one of these contracts, as state courts have not been my clients for several years; but it concerns me, as a defender of our profession, that my colleagues may sign these documents out of fear or hopelessness. I invite all those court interpreters who have been, or will be asked to sign one of these agreements in the next few months, before the new fiscal year starts in July, to seek legal representation. It is your professional career, it is your future. I believe that state (and national) level professional associations should negotiate a deal with a labor relations or civil law attorney, where services would be provided at a lower fee, and offer it as a benefit to their members. In fact, I would like to see all interpreters who are members of a state or regional professional association present a common front and negotiate these contracts with the state administrator. As state court interpreters we need protection, because if we do not act, we will continue to move backwards. They already told many of us that there is no money and they blamed it on the state legislature, now we know that perhaps they did not try to protect the interpreter program no matter what.
They are paying you less, making your work conditions very uncomfortable, they already took some of our work away and gave it to mediocre cheaper paraprofessionals. All professionals negotiate the terms of a contract, and before they reach an agreement, they have the benefit of legal representation. The administrative office of the courts is represented by their attorneys; interpreters, like all professionals, should at least be represented by an attorney before they sign a new agreement. I now ask you to comment on this situation and the ways to recover what we had already achieved in the past, so we can move forward, and for the first time fully comply with Title VI of the Civil Rights Act.
Interpreting for government contractors: A real nightmare?
September 24, 2013 § 6 Comments
Dear Colleagues,
I know that working with government contractors is a delicate topic for many of you. I understand that in some cases you are as invested in a project as the contractor, and I also know that these entities and individuals serve a purpose in our system. I have personally worked for many government contractors in my professional career. I have to say that my experiences have been good most of the time, but because I have been shortchanged by a contractor in the past, and because I have heard horror stories from many of my colleagues, I decided to write this blog.
My worst experience with a federal government contractor wasn’t as an interpreter. It was as a translator. Years ago I was hired to do a very large translation that required of many months of hard work. Because of the size, it was agreed that I would receive a big down payment, and that I would deliver the translation in parts. Every time I delivered part of the translation I would get paid for the part that was delivered. I translated one third of the job and I got paid; I translated a second third of the job and I was paid; but when I delivered the rest of the translation I received no money. I repeatedly sent invoices and notices to the same people I had been dealing with for over a year. They first told me that there had been a glitch in the system and I would get the check very soon. Months later they put me through to several people I had never dealt with, and I was told that this payment would take some time because the government had not paid them yet. Finally, after several attempts to talk to somebody and never getting a real human being on the phone, I decided to contact the company’s general manager and I was told that they were not going to pay me, period. They argued that the government had paid them less than expected and that I had already received an important sum of money. I had no choice but to send the invoice to a collections agency and after about a year I got most of the money they owed me. They paid on installments. As an interpreter there was a time when I was offered a job by a contractor. Although I had not worked for this company, I knew colleagues who had and they had shared their horror stories. The proposal was interesting so I decided to talk to this contractor.
It went wrong from the beginning when this person started by telling me: “…of course you are not one of those interpreters that want to charge (he mentioned the amount) dollars per day right? We are offering you a great opportunity, so part of it is that you have to play ball with us and accept (he quoted me a pretty insignificant amount) dollars per day…” I paused for a second and said: “You are right. I am not one of those interpreters who charge (I repeated the amount he had used before) dollars per day. I charge (I quoted a quite larger amount) dollars per day regardless of the great opportunity this may be…” Obviously he did not like my answer and after a few irrelevant exchanges we parted ways. He said that he would get back to me with an answer but I knew he wasn’t going to call again.
A few months went by and I eventually ran into a colleague who works with government contractors all the time. During our conversation about his work, he brought up the name of the individual I met with months before, and said that this contractor I had turned down months before, was in some kind of crisis because he had hired some interpreters for a big job and apparently the client was not happy with the service provided. My friend mentioned that contractors had been under a lot of pressure because the government was looking for lower bids every time, and they had started to cut costs by hiring less experienced and less expensive interpreters. That was the end of the conversation and that was it.
A few weeks later I got a phone call from the same contractor “apologizing” because it had taken him this long to get back on the proposal but that he was ready and we should meet. He never mentioned the fact that he had tried other interpreters first and it backfired. At this point I really didn’t want to work with him because the interpreter fee comment from the first meeting had really bothered me, but we met anyway. He was ready to pay the amount I requested at the first meeting, but this time I asked for more. He seemed surprised and told me he had to think about it. We said goodbye and I never heard from him again. I later learned that his company had not paid in full to any of the colleagues who ended up doing the job. I was really glad I decided not to take the job.
Some interpreters have not been this lucky. Although I didn’t see this first hand, I heard of some colleagues brought to the country on non-immigrant visas sponsored by the contractor, who are not paid regularly, are forced to work overtime for free, and are constantly threatened with the revocation of their visa. Other colleague told me that after being hired by a government contractor for a 2-week job away from his hometown, he was cancelled on the day the job started and the contractor refused to pay him arguing that he had “done nothing…to deserve payment…” totally disregarding the fact that this colleague had made travel arrangements, had turned down other assignments during those 2 weeks, and was not going to make any money for at least a good part of the 2-week period. I know staff interpreters who quit full-time and part-time jobs with government contractors, and I know others, like me, who had to go to collections agencies, and even to court, in order to get paid for work already done. I am not saying that all government contractors are bad people. Some of them are really good. All I am saying is that before signing a professional services agreement with a government contractor, you should check the company out and review the contract very carefully. Contractors are essential in our type of work and we must work together developing strong professional relationships, but we should never forget that despite the glamour and prestige of the job offered, we should always do our homework before signing on the dotted line. Please share your contractor experiences, good or bad, with the rest of us.