Interpreters’ association favors some of its members with 2 questionable actions.

July 11, 2019 § 13 Comments

Dear Colleagues:

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.

Be vocal! Professional Associations: Stand up against injustice.

June 25, 2019 § 4 Comments

Dear Colleagues:

It has been almost a month since we first learned that our colleague Shin Hye-Yong, who interpreted for the Democratic People’s Republic of Korea (North Korea) Supreme Leader Kim Jung Un at the Hanoi summit with United States President Donald Trump was apparently detained at a political prison camp charged with undermining the Leader’s authority. This has been called “a critical interpreting mistake” by some in North Korea.

It has been widely reported by reputable press publications in Asia, Europe, and the United States, that the interpreter was blamed for president Trump’s walking away from the negotiating table when apparently the North Korean leader was “ready to continue the negotiations” and uttered in Korean: “Wait! Wait!” Or something similar that his interpreter did not convey in English before the American delegation exited the room. According to the media, Kim Jung Un ordered her detained and sent to a labor camp where she is currently undergoing reeducation and reflecting on her loyalty to the supreme leader of North Korea. Of course, we all know that in the civilized world, an error, if one really was really committed, has consequences that can go from a reprimand to a demotion, or firing, but never to hard labor or incarceration.

It was also reported by South Korean newspaper Chosun IIbo and others that Kim Hyon Chol, North Korea’s special envoy to the United States for nuclear negotiations was executed immediately after the summit. Although this turned out to be false, and Kim Hyon Chol is alive, he has been demoted from his pre-summit position, apparently he spends several hours a day writing essays and reflecting on his loyalty to the supreme leader. Nothing has been reported or leaked about the situation of our colleague Shin Hye-yong or their family.

It is not clear if Kim Jung Un really said these words, and if he did, it was loud enough for the interpreter to hear them, or he spoke under his breath. It is also possible that the interpreter rendered the words in English so low that Trump did not hear them, that she interpreted after the Americans had left the room, or that Trump heard her and ignored her.

I learned of this atrocity against a fellow-interpreter, and against our profession really, while at a conference attended by many colleagues, some of them diplomatic interpreters who have worked with heads of state from many countries. I immediately thought our governments would speak up against these horrible allegations but I also understood governments need to act calmly and wait until there is more information, even when dealing with a black hole of information like North Korea. I also expected our professional associations, those who represent thousands of interpreters and translators throughout the world to raise their voice in support for Shin Hye-yong and in protest for what was done to her and to the profession at large.

I expected those who represent us to react immediately, condemning the allegations and declaring them, if true, unacceptable. The International Association of Professional Translators and Interpreters (IAPTI) proving once again it truly stands shoulder to shoulder with all interpreters and translators, issued a letter condemning the allegations right away. The International Association of Conference Interpreters (AIIC) mentioned the incident on social media, and several colleagues, individually, have shared their total rejection to what happened in North Korea. Most associations, including the bigger, wealthier organizations with the most members have timidly remained silent. Some of them have reacted like news agencies and have called to corroboration before issuing any statement, even when practically all major publications in the world already talked about this. Others, have argued it is better to remain quiet for now out of fear that a communication condemning these actions against Shin Hye-yong could make her situation worse.

I guess these groups think a protest from a translators and interpreters association will motivate a ruthless dictator to punish an individual more harshly than everything already published by the likes of The Guardian, New York Times, Washington Post, Asahi Shinbun, Chicago Tribune, etc.; like Kim Jung Un keeps an eye on our opinions.

These professional associations completely missed the point: a letter from a professional association will not sway a dictator more than public opinion or world-reputable newspapers; the letters are for us. The purpose of issuing a formal protest by any of them is to show their members, and the profession at large, that in times of crisis, darkness, fear and despair, they are with us, they feel our pain, they have our back. It is for us, thousands of interpreters and translators to feel the associations are protecting the profession, to the point of not accepting anything that hurts what we do, even if they are just allegations. Kim Jung Un will never read these letters nor learn of their contents, but Shin Hye-yong, and her family, might. Perhaps she will hear about the letter from IAPTI in that horrible place where she is being held. Knowing her fellow interpreters throughout the world are aware of what happened to her, they are saddened and they are showing their disapproval will make her feel less alone, hopeless, and isolated where she is.

This was a hot topic for discussion and rage among all of us at the conference; opinions against the North Korean regime’s decision to incarcerate the interpreter, and concern for the recent and constant attacks on the diplomatic interpreting profession were voiced everywhere. There was a comment that stayed with me. I asked a top-level interpreter who works with presidents and other world leaders if she thought interpreter and translator professional associations should speak up and condemn the actions of the North Korean government against the interpreter, even if they had not been confirmed. Her answer was: “What would you want your peers to do if you were in her shoes?” I answered without hesitation: “I would want my colleagues and my professional associations to raise their voice in support of the profession and to defend me”. She told me she would want the same if this happened to her. Next, I asked the same question to as many colleagues as I could, and all of them told me the same. Nobody told me they wanted for the interpreting world to wait for a corroborating source. There was not a single interpreter who bought the argument that speaking up would make things worse for her.

Dear colleagues, our profession, especially diplomatic interpreting, is under attack in many places, from the United States Congress politically motivated posturing demanding interpreter’s notes and threatening a subpoena, to the president of Mexico using his secretary of foreign affairs as interpreter instead of a professional, to the disaster in North Korea.

This is not the first incident involving a North Korean interpreters: It is not clear why Kim Jung Un replaced the experienced interpreter who accompanied him to the first Trump meeting in Singapore with our now ill-fated colleague Sin Hye-yong; we saw the fear in an interpreter’s eyes when in front of the TV cameras Kim Jung Un dropped something and the interpreter took a professional athlete’s dive to catch it before it hit the ground; and we all saw the embarrassing incident with the Vietnamese interpreter who dashed from the helicopter down the red carpet to get to the dictator before he uttered a word to the Vietnamese officials welcoming him to Hanoi.

Professional associations do not need to wait for corroborating sources to protest such serious allegations. They can protest the allegation and condemn it if “it turns out to be true”. Professional associations need to speak up; it is not their job to keep dictators happy, their job is to protect their members and the profession. Last century, world leaders sat on their hands as Hitler invaded Poland, they did not want to upset him, and we all know what happened. Professional Associations are always bragging about “everything they offer” to their members. It is time they offer them solidarity and support. I now invite you to share your opinion on this extremely important issue.

We must protect the interpreter, not the middleman.

June 12, 2019 § 11 Comments

Dear Colleagues:

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.

We should act more like professionals and less like merchants.

April 29, 2019 § 6 Comments

Dear Colleagues:

Interpreters are constantly fighting to be recognized as a profession, to be respected by their clients, and to be treated and remunerated as providers of a specialized service that requires a strong academic background. Although most interpreters strive to be viewed as fellow professionals of physicians, engineers, attorneys and accountants, many colleagues, including freelance interpreters, behave more like a tradesperson than a professional.

Because of poor legislation, pervasive ignorance, and a myth that any bilingual can interpret, the idea that professional interpreting services can be provided by a commercial agency has been accepted, or at least tolerated, around the world. Professional services have been bought and sold like commodities by businesspeople foreign to interpreting, stingy government agencies, and unscrupulous interpreters willing to sell out their profession to make a quick buck.

A world where physicians provide their services through a commercial agency’s model is unimaginable. Attorneys’ Bars around the world would oppose, and destroy, any efforts to sell legal representation by agencies where a high school teenager, calling herself a project manager, were to assign lawyers to their clients on an availability basis, without considering quality or experience to decide on the attorney who gets the case. Interpreters see this happening every day and do nothing about it. Not even freelancers question this commercial model; they join these merchants and help to undermine their own profession.

I am not naïve. Multinational interpreting agencies are powerful, greedy organizations willing to fight for what they consider their “industry” to the end. They launch advertising campaigns, misinformation efforts to convince potential customers (they do not have clients) that hiring an interpreter is very difficult; that it can only be done through an agency. They spend time and money convincing freelance interpreters they are their allies; they procure them work, deal with the customer, and pay them a fare “rate” (they do not pay professional fees) after taking the portion of the paycheck they have morally earned. Interesting that agencies never disclose interpreters what they charge their customers, and force freelancers to remain silent when approached by one of the customers about their professional fees or availability.

We will not get rid of these agencies, but I know that interpreters will only be viewed as professionals when they act the part. I also know that some, few, are managed by good people.

There are many colleagues around the world who work as I do. We operate as a doctor’s office or a law office work. When contacted by a client about an assignment that will require the services of interpreters in five languages, I provide my client with the name and contact information of trusted colleagues with the experience and language combination needed for the assignment. If the potential project involves languages commonly used in my part of the world, or several interpreters in my own language combination, I even forward the inquiry to my trusted colleagues, my allies. My client takes it from there and individually negotiates the fee. I also suggest, and sometimes forward, the request to a trusted equipment/technical support provider. The client negotiates costs directly with them. It is like going to a building where many physicians have their offices, all independent, but all trusted colleagues; they suggest one of their colleagues depending on the field of specialization needed by the patient, but each doctor negotiates and sends a separate bill. These professional alliances, professional groups, are a network of professionals who know each other’s quality of work, ethical values, and language combinations. The client has to pay the professional interpreters individually, but he need not look for interpreters with the right experience, language pairs, or availability. That is all done by the interpreter who the client contacted first. That interpreter is the point of contact who suggests colleagues she will vouch for, and she is moved by no other interest but her client’s satisfaction. She will not subcontract the other interpreters, she will not charge them a commission or referral fee, she will only do what all physicians do when you go to their office and they suggest you see the dentist downstairs or the eye doctor next door.

There will be instances when you cannot help the client. There are languages you never work with. Sometimes doctors cannot recommend a colleague because they have no proctologist in the building. That does not mean that the professional network they offer to their patients has no value.

My good clients love this option. They understand it is difficult to get quality in all booths. They trust me and know that I would not jeopardize my reputation by referring them to a mediocre interpreter. They know I suggest nobody services because they are cheap. They also trust my judgement and experience a lot more than they trust a young monolingual person with no practical or theoretical knowledge of the profession, who calls himself “project manager” and has met none of the interpreters he will line up for a job. Clients know that project managers abide by company rules and guidelines which include: profit at all costs. They know their professional pool is limited because they can only provide interpreters willing to work with the agency in exchange for lower fees, inadequate working conditions, and disrespectful treatment.  This professional network model operates as a virtual office where my trusted colleagues are all over the world. It has no time or space limitations.

Interpreters who want to grow and expand to a larger scale should do it, but they should do it as law firms do. Incorporate as a professional corporation or a limited liability corporation, not a commercial enterprise like agencies do. These solutions will let you work as formal partners or shareholders and protect from liability without giving up your professional identity. We need not look or operate like an agency. They are not us.

They want to commoditize our profession and turn it into an industry. They are outsiders with a different set and scale of values. We are professionals. We should act as such. I know many of you are already doing what I described. I also know many colleagues will dismiss these ideas and even defend the agency commercial model. I am aware professional associations are guided by board members who own agencies, and as we have seen, even board members refuse to recuse themselves from voting in association matters when there is a conflict of interest between interpreters and agencies. Finally, I know some interpreters are not ready to freelance, they fear they cannot get clients outside the agency world, or they are content with little money. There, stay with the agencies, that is what you like and deserve.  I now invite you to share your thoughts on this critical issue for our recognition as professional service providers.

Alert: They are interpreting illegally outside their country.

February 6, 2019 § 12 Comments

Dear Colleagues:

During my career I have experienced first-hand situations when people who live outside the United States interpret at the same convention center where I am working another event. I am not talking about diplomatic interpreters who travel with their national delegation to the United States, nor I am referring to the personal or company interpreters who travel to the States with a CEO to negotiate a deal. I am talking about foreign nationals brought to the United States to interpret a conference because their professional fees are lower than customarily fees charged by interpreters who live in the United States. One time I ran into some interpreters from a South American country at a convention center’s cafeteria. They were nice, experienced, and they did not live in the United States. After the usual small talk, I asked them how difficult was to get a visa to come to interpret in the United States, one of them dodged the question and the other one told me she didn’t know because she already had a visa she was granted when she took her children to Disneyworld. Just a few weeks after that episode, I got a phone call from a colleague who wanted to let me know that he was working at a venue in the mid-west where they were using other interpreters brought from abroad for the conference. He explained these foreign colleagues were having a hard time with the cultural references, and apparently had entered the country on tourist visas.

In this globalized economy, some agencies are hiring foreign interpreters, who live outside the United States, because they come from economic systems where a sub-par professional fee in the U.S. looks attractive to them. I have heard of interpreters brought to work in conferences and other events for extremely low fees and under conditions no American interpreter would go for: Two or even three interpreters in the same hotel room, no Per Diem or pay for travel days, often working solo, for very long hours without enough breaks, and without a booth.

The worst part of this scenario is that many of these foreign colleagues are very good interpreters who come to the United States to hurt the market by working for that pay and under those conditions, and they do not see how they impact the profession. Multinational and small-peanuts agencies love these interpreters because they just buy them the cheapest plane tickets, put them all in a budget hotel or motel, and pay them for a five-day conference a sum of money that would only cover the professional fees of local interpreters’ one or two days of work. Sometimes the agency’s client suggests interpreters be brought from abroad to abate costs; they even argue these colleagues’ renditions are even better because they “speak the same language the audience speaks, with all of its expressions, and dialects, unlike American resident interpreters who many times speak with a different accent because they do not come from the attendees’ country.” It is true that many of these foreign interpreters are very good and experienced; it is also true that, in my case, their Spanish accent and some regional expressions may be more familiar to their audience full of fellow countrymen; however, it is also likely that these interpreters may have a difficult time when interpreting references to local politics, sports, places, and general culture used by the speakers; what we call “Americana”. I would argue that professional interpreters, by living in the United States, are exposed to all language variations in their language combination because, unlike most foreign interpreters, they routinely work with multinational audiences. I also believe that it is more important to understand what the speaker is saying, after all that is why those in attendance traveled to the United States for. A rendition that puts the entire message in context, and is transmitted to the target language with all cultural equivalencies is a more desired outcome than listening to a rendition from someone who sounds like you, but does not get the cultural subtleities, not because she is a bad interpreter, but because she does not live in the country.

But there is a bigger problem: Most of these interpreters brought from abroad are in the country without a work visa.  Entering the United States on a visa waiver or a tourist visa does not give them legal authority to work in the U.S.

This is a serious matter: Whether they know it or not, the moment these interpreters step into the booth, or utter the first syllable of their rendition, they are out of status, and they are subject to removal from the United States. The moment the agency, event organizer, university, business or organization brings one interpreter to the country they are subject to a fine. Not to mention reactions to the illegal hiring of foreigners to the detriment of American professionals in the court of public opinion.

If these interpreters are really the best for the conference topic, agencies and organizers may hire them and bring them to the United States, but they would have to do it legally, through a work visa application; and depending on the visa needed, there are complex and lengthy legal steps to be followed before the Department of Labor (DOL), U.S. Citizenship and Immigration Services (USCIS) Department of State (DOS) at the American embassy or consulate at the interpreter country of residence, and U.S. Immigration and Customs Enforcement (ICE) at the port of entry. The process is lengthy and it requires of an immigration attorney. Dear colleagues, if the event requires the expertise and skill of the foreign interpreter, agencies and organizers will cover the costly process. If they were only retaining interpreters from outside the United States to save money, the visa process’ length and cost will make it more expensive than hiring top-notch interpreters living in the United States. (https://www.uscis.gov/working-united-states/temporary-nonimmigrant-workers)

These interpreters, even if they worked illegally in the United States, must pay U.S. federal income tax for the work performed within U.S. territory. An exception exists for certain amounts earned by foreign nationals not living in the U.S.; Under this exception, compensation for services performed in the U.S. is not considered U.S. source income if these conditions are satisfied: (a) The service must be performed by a nonresident taxpayer temporarily present in the U.S. for a period of 90 days or less; (b) The total compensation for these services does not exceed $3,000.00 USD; The services must be performed as an employee of or under contract (in the case of a self-employed contractor) with one of the following: A nonresident individual, foreign partnership or foreign corporation not engaged in a trade or business in the U.S., a foreign office or foreign branch of a U.S. resident, U.S. partnership, or U.S. corporation.

Always remember this, educate your clients, the agencies you work for, and if you are getting nowhere, when you see interpreters who do not live in the United States working an event, and believe me, you will know because of the cultural nuances, consider reporting the incident to the immigration authorities.

This is not an issue exclusively found in the United States, it happens all over the world, especially in first world countries of Asia and Western Europe. It also happens next door: Again, American agencies in their tireless quest to make money and destroy the profession, take American interpreters to work in Mexico, and if they are United States citizens, they take them with no visa. I have seen phone books, publications, and websites advertising interpreters from the United States for conferences, industrial plant visits, and depositions in Mexico. Among the most popular arguments to lure event organizers, businesses, or Law Offices in the U.S., they assure them that American interpreters are more familiar with their lifestyle, that they are certified by this or that U.S. government agency, and they even imply that somehow Mexican interpreters are less capable or professional than their U.S. counterparts.

This is total nonsense. Mexican interpreters are as good as Americans, interpreters living in Mexico possess American certifications, and there are probably more interpreters in Mexico with a college degree in translation or interpretation than those we have in the States. Let’s face it, the only reason these agencies want to promote American interpreters is because when a lawyer, company or event organizer hires the interpreting team in Mexico they do not need the agency; they make no money. Unless you travel as part of a diplomatic delegation, a business mission, international organization, or you are an employee of a firm that takes you to Mexico to exclusively interpret for the company you work for; If you are an interpreter living in the United States and you take an assignment to interpret for a deposition, industrial plant inspection, or other job, unless you are a Mexican citizen, or you have legal authority to work in Mexico, you will be breaking the law and are subject to deportation. It does not matter that you speak Spanish, you must be allowed to work in Mexico. (Art. 52 y sigs. Ley de Migración. D.O. 25/5/20111 https://cis.org/sites/cis.org/files/Ley-de-Migracion.pdf) There are fiscal obligations for those working as interpreters in Mexico, even if they had no authority to work.

Because often the agency’s client or the interpreters do not know they are breaking the law, you should educate them so they hire local talent. Please remember, this is a collective effort, we must try to bring up fees and working conditions in every country according to this economic reality and possibilities. This will never be achieved by killing foreign markets with illegally obtained, procured, or provided professional services at sub-par conditions. You probably noticed that I skirted around VRI services. Although it could be as harmful as in-person interpreting services when left in the hands of unscrupulous multinational agencies, that is an entirely different matter that requires more research and study of legal theories and legislation. I now invite your comments on this very important issue.

What we learned as interpreters in 2018.

December 27, 2018 § 16 Comments

Dear Colleagues,

Now that 2018 is ending and we are working towards a fruitful and meaningful 2019, it is time to assess what we learned during the past 12 months. As interpreters we are constantly learning, and from talking to many of my colleagues, this year was packed with learning opportunities. In 2018 I worked with magnificent interpreters and many of my dearest colleagues.

Our profession had positive developments this year: The Spanish Division of the American Translators Association held a very successful conference in Miami, Florida, where those of us in attendance could see many friends and colleagues doing great things for our professions. It was an eye-opener to experience first hand how a professional conference organized by one of the divisions of the American Translators Association, working together with the Association of Translators and Interpreters of Florida (ATIF) and Florida International University (FIU), put together a conference we can unequivocally call professional, full of content, at an excellent venue, and attended by true professional interpreters and translators who could freely exchange opinions, attend workshops and presentations, and enjoy an environment free of predatory agencies, product pushers, and colleagues chasing after newcomers to convince them to work for insultingly low fees. Unlike the better-known ATA conference, this event truly felt like a professional conference, not a trade show. In fact, I invite all those Spanish language interpreters and translators who are ATA members, and think that the Fall conference is way too expensive, to attend this conference instead. In my opinion, if you have to decide between the ATA conference and the Spanish Division conference, it is a no-brainer: pick the smaller, more professional Spanish Division event.

Once again, the interpreting profession continues to advance in Mexico, as evidenced by the Organización Mexicana de Traductores’ (Mexican Translators Association, OMT) very successful conference in Guadalajara, The Autonomous University of Hidalgo’s University Book Fair and content-packed conference in Pachuca; and the every-year bigger and more successful court interpreter workshop and conference for Mexican Sign Language (LSM) that took place in Mexico City once again. The International Association of Professional Translators and Interpreters (IAPTI) took its world congress to Valencia, Spain for its best attended conference in history. Workshops and presentations were first-class, and as it is traditional with IAPTI, colleagues attending the conference had the opportunity to interact with their peers from around the world. The largest U.S. contingent attending a IAPTI conference to date, enjoyed the benefits of interacting with colleagues who literally live all over the world. They noticed the difference between attending a conference in the United States with interpreters and translators from many countries, all of them living in the U.S., and IAPTI where all of them live in their respective countries. The benefit you gain from talking to a Polish interpreter who lives in Poland enriches your personal knowledge of the profession more than speaking with a Polish interpreter who lives in New York City. Besides the characteristic IAPTI’s philosophy and agency-free conference, I was happy to see a well-balanced program full of Interpreting workshops and presentations. Finally, like every five years, the Asociación Española de Traductores, Intérpretes y Correctores (Spanish Association of Translators, Interpreters and Editors, ASETRAD) held its conference in Zaragoza, Spain. This congress was by far the best all-Spanish language conference of the year, and just as I do every five years, I invite all my Spanish speaking colleagues to save the time and money to attend the next gathering five years from now. I was involved in other professional conferences and seminars of tremendous level where I was honored to share experiences and exchange ideas with many professional colleagues. Thank you to all my colleagues who attended my presentations, workshops and seminars. It was a pleasure to spend time with all of you in 2018.

This past year saw big changes in healthcare interpreting in the United States with a major struggle between the two leading certification programs. Fortunately, what looked like the beginning of a big conflict, ultimately subsided, and better-informed interpreters are now deciding what to do with their professional future. The year brought positive developments to the largest court interpreter association in the United States. After a major set back at the end of 2017 when two pillars of the court interpreting profession resigned from the Board of Directors, NAJIT went back to capable, experienced professionals, electing a new Board that fits tradition and expectations. Unlike 12 months ago, the association goes into 2019 with a group of experienced and respected Board members and a promising future.

The year that ends in a few days saw the growth of our profession in the field of Remote Simultaneous Interpreting (RSI). I had the opportunity to work several assignments remotely, and both, technology and work conditions were as they should be. I also heard from many colleagues who continue to struggle and endure abuse from some agencies who push video remote interpreting (VRI) in less than favorable conditions.

Not everything was good. 2018 took from us some of our dear friends and colleagues. I cannot reflect on the year that ends without remembering three dear and admired colleagues who passed away: Juan José Peña, a pioneer in the American Southwest, mostly in New Mexico. For years, Juan José was a trainer and examiner for the New Mexico State Court Interpreter Certification program; he was the first staff interpreter at the federal court in Albuquerque, and he selflessly helped new interpreters in New Mexico and elsewhere. Carlos Wesley, a powerful and gentle presence in the Washington D.C. metro area for many years, and an examiner for the federal court interpreter certification exam. Esther Navarro-Hall, a kind, selfless, talented colleague who impacted our profession and the lives of many interpreters worldwide as a professor at MIIS, regular trainer all over the globe, habitual presenter at professional conferences, Chair of the National Association of Judiciary Interpreters and Translators (NAJIT) in the United States, and humanitarian, promoting help and assistance to those impacted by natural disasters everywhere. Our lives and profession are better because of them.

Unfortunately 2018 will forever be remembered as a low point in the history of the profession in the United States. It was its darkest hour. I am referring to the inexcusable fiasco that impacted hundreds of interpreters, and continues to do so, because of the ineptitude of government officials, their selected contractors, and the cover up, misinformation, and lack of response that followed for many months: The 2017 oral federal court interpreter certification examination. We go into the new year with many unanswered questions, with no accountability, and with uncertainty for many who took the test, and patiently await to this day for an examination date more than a year after taking the exam. 2018 will be known as the year when ineptitude destroyed the credibility and reputation of the until then most trusted interpreter exam in any discipline in the United States.

The biggest shift in American foreign policy in decades and its impact on our profession continued in 2018. Events held in the United States for many straight years left for other countries because of the uncertainty of American immigration and trade policy. It proved very difficult to plan a big conference and invest a lot of money, without the certainty that attendees from certain countries will be admitted to the United States for the event. International government programs that require of interpreting services were at an unprecedented low, and changes of personnel in the administration, at all levels, impacted the work available to interpreters in the diplomatic, international trade and private sectors.

If not for the federal court interpreter certification exam disaster, the biggest stain of 2018 would be the conspiracy by most multinational and domestic interpreting agencies to do whatever necessary to overturn a California Supreme Court decision that protects independent interpreters by giving them certain rights that greedy agencies oppose, as compliance with the court decision would diminish their ever-growing margins. These agencies are actively pursuing the overturn of the decision by lobbying for legislation against interpreters. Apparently these efforts are led by a lobbyist who, ignoring any conflict of interest, and with the blessing of the largest interpreter and translator association in the United States (either by action, omission, or both) is trying to get Congress to exclude interpreters from the groups protected by the California Supreme Court decision.

Said conspiracy took us trough a research path that showed us how some of the Board members of this “translators and interpreters” association actively support agencies’ efforts, including a Board member who stated he would not even excuse himself from a vote in cases of conflict of interest. Statement that we will surely revisit come election time.

Throughout the world, colleagues continue to fight against low pay, deplorable working conditions, favoritism, ignorant government program administrators, and other problems. More European countries are now facing outsourcing of interpreting services for the first time.

Once again, interpreters around the world faced attempts from special interest groups to erode our profession by lowering professional standards creating questionable certification programs, and offering pseudo-conferences and webinars to recruit interpreters for exploitation while hiding behind some big-name presenters, many of whom have agreed to participate in these events without knowledge of these ulterior motives.

Of course, no year can be one hundred percent pariah-safe, so we had our “regulars” just like every single year: 2018 was full of para-interpreters trying to “take over” the market by charging laughable fees under shameful working conditions in exchange for miserable services.

As you can see, dear friends and colleagues, much changed and much stayed the same. I choose to focus on the good things while I guard against the bad ones. I now invite you to share with the rest of us your learned lessons (good and bad) of 2018.

I wish a Happy and Productive New Year to all my friends and colleagues!

Lack of understanding, common sense = constitutional conflict in court?

November 12, 2018 § 1 Comment

Dear colleagues:

I recently learned that some federal district courts got involved in the way federal prosecutors pick their interpreters for hearings. I have practiced in federal court for many years, and the decision on who will interpret for the office of the United States Attorney has always been left to the prosecutors who know the case better than anybody else. This means they, and their prosecutorial team of paralegals, investigators, detectives, and law enforcement agents, know the language complexities of a particular case, and therefore, better equipped to decide who they need for that interpreting assignment.

I do not dispute that some districts, because of a lack of federally certified court interpreters, or out of plain ignorance, have never tried a case where the assistant U.S. attorneys (AUSA) have their own interpreters for a trial. Some districts are so small, the AUSA office does not even have a staff interpreter. Some districts are so remote, that even the court tries cases with unqualified court interpreters (usually certified or accredited at the state level) because it is next to impossible to get somebody to the courthouse. Evidentiary hearings and trials require that an interpreter be physically present at the hearing. Remote interpreting is not a viable option for these proceedings.

That some have always followed this practice does not make it right, and courts in districts in urban centers where federally certified court interpreters are available have no reason to inject themselves in what should be an internal process of the Department of Justice. Let me elaborate:

The American legal system, and all legitimate legal systems in the world, are based on an independent judiciary free to decide with no pressures or fear of retaliation. The United States Constitution recognizes and enshrines this principle through the separation of powers. The Executive Branch of the federal government originates from Article 2. The Judicial Branch stems from Article 3.

With administration of justice in a criminal case, all individuals in the United States have the rights and protections established by the Constitution and secondary legislation; mainly, the right to a public and fair trial by their peers, starting with a presumption of innocence, charging the Executive Branch of government, through the United States Department of Justice, with the burden of proof, beyond reasonable doubt, in an orderly regulated process, presided by and controlled by the Judicial Branch of government. To put it simply: Because the government cannot be judge and party, it is an agency from outside the Judicial Branch, in this case the Justice Department, who prosecutes the case on behalf of the U.S. government, including the citizens that the government must protect from the bad guys.

We can see that having the burden of proof is no small task. Federal prosecutors must investigate de facts, test and evaluate the evidence found, and prepare a case that will persuade the jury and judge of an individuals’ guilt beyond reasonable doubt. If successful, the Justice Department will meet its duty to protect society. This is no easy task; it also means that individuals will lose their assets, their freedom, and even their life.  A prosecutorial team must have the best team available to fulfill its function, and that is extremely difficult.

Federal prosecutors must call witnesses to testify in the trial. When these witnesses do not speak English, their testimony must be interpreted into English to benefit the defendant, the defense attorneys, the judge, and the jury. It is only then, after the rendition of the interpretation, that the defendant will have exercised his constitutional right to confront the witness or accuser. It only after the rendition that a judge or jury can assess the credibility of the witness. It is this time they will decide if they believe all, part, or nothing of the witness’ statement.

But most of the work is done before the witness steps in the courtroom and takes the stand. Prosecutors and their teams test, evaluate, and prepare their witnesses before a trial. Questions are asked many times, in many ways; adjustments are made. Not to influence testimony, but to present the truth clearly to the trier of fact (judge or jury). Usually the testimony of the witnesses for the prosecution is very complex, specialized, scientific. Dense concepts and sophisticated terminology must be interpreted into English during the trial; cultural concepts must be clarified before the final rendition (many expert witnesses come from abroad just for the trial); legal systems compared so the accurate term in the target language is rendered by the interpreter. Leaving loose ends is not an option: The prosecution must prove, and the standard could not be any higher: beyond reasonable doubt. Prosecutors and their teams, assisted by the interpreters, go over the testimony with every witness as many times as needed. These interpreters must research, study, practice, develop a common glossary for each testimony. The witness gets used to that team of interpreters and the interpreters get used to the witness.

The interpreters for the prosecution know the case, they are familiar with names, dates, places, and other key information that must be interpreted with accuracy. From gang slang, to amounts of drugs, to family relationships. It all needs to be well-understood so the interpretation heard in trial is accurate, pristine, and truthful.

Confidentiality is essential to our justice system. It lets the parties tell the truth to their attorneys so they can represent, in a criminal case, a defendant or society with full knowledge of the facts. Confidentiality is also very important when it comes to the lawyers’ strategy. Prosecutors and defense attorneys develop a strategy to win a case. The interpreters for the prosecution know the strategy and facts, and they are covered by the veil of secrecy. Using a court appointed interpreter to interpret for the prosecution generates a conflict of interest. You cannot be judge and party simultaneously. Even the most professional, trustworthy interpreters should never be placed in such situation. The sole appearance of conflict is enough to cast a shadow on the proceedings. Client-attorney privilege only exists when there is an expectation of privacy. How could this be argued when the same interpreter hears all confidential details?

The independence of the prosecutorial interpreters is so important, that even their payment differs from that court appointed, public defender, and Criminal Justice Act (CJA) attorney interpreters receive.  I am not referring to staff interpreters, I am talking about independent contractors retained to work in a case. While interpreters for the court, public defender, and CJA attorneys are paid through the judicial system (Judicial Branch of government) interpreters for the prosecution are paid by the United States Department of Justice (Executive Branch). The funds come from different budgets to assure independence, absence of conflict of interests, and separation of powers. The Office of the United States Attorney pays better that the courts, and unlike the latter, fees are negotiable between the parties (interpreters and AUSAs). This can also be relevant if you think that most more experienced, better trained interpreters would rather work for the prosecution, leaving a smaller pool of top-level interpreters to work for the courts, and increasing the risk of an inaccurate rendition of a prosecutorial witness’ complex testimony during the trial.

The widely, and constitutionally backed, practice of having a separate interpreter team for the prosecution in federal cases must continue as long as we have separation of powers, and a system where one party has the burden of proof. There is no rational justification for this practice by the executive branch of government, to be changed by court staff, from a different branch. Such decisions are being made in courthouses where none of the issues above were given any thought, where prosecutors did not reflect on the implications of such changes, and a decision was unilaterally made, perhaps due to a lack of understanding that lead to this policy deprived of common sense. If the decision at these district courts was made unilaterally, we have a separation of powers issue; if it was decided for monetary reasons, remember that interpreter fees are paid from two budgets (executive and judiciary); if it was decided to avoid comparisons between experienced prosecutorial interpreters, and perhaps less qualified court appointed ones, it was motivated by unethical reasons and it shows a disappointing level of professionalism; and if this was a joint decision by the courts and AUSAs in some districts, they must address the conflict of interest and at the least the appearance of conflict.

Our legal system has been around for 250 years. It has organically adjusted its parts to observe the fundamental democratic principles, starting with an independent judiciary, a separation of powers, and the rights and protections to the individual and society. In today’s world where many things that were, are no longer, let’s hope this is not changed by the capricious decision of a few. I invite you to share your thoughts on this issue.

The best interest of the interpreter, not the agency’s.

August 29, 2018 § 6 Comments

Dear colleagues:

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.

Interpreters: Your clients, and your clients’ clients.

June 4, 2018 § 8 Comments

Dear colleagues:

I get goosebumps every time I hear freelance interpreters talk about their “boss”. I am constantly surprised at the huge number of independent contractor colleagues who refer to the authorities at the agencies, hospitals and courthouses they provide interpreter services for as their bosses.

This is an abomination when used to describe the other party to a professional services contractual relationship, now exacerbated by the very dangerous ruling by the United States National Labor Relations Board (NLRB) in SOSi where it ordered this interpreting agency to reclassify its interpreters working as independent contractors as employees. SOSi is appealing the decision, and we will discuss it in depth on a future post.

Our concern today is the conscious or subconscious lack of understanding of the professional services relationship derived from a contract where an independent interpreter is the service provider.

Freelance interpreters are independent professionals who provide their services for a fee. The terms of such services and fees are agreed upon by the interpreter providing the service and the individual or corporation recipient of the interpreting services in a contract. The parties to this contract are: The professional (who provides the interpretation, in other words, the interpreter) and the recipient of the professional service, called the client.

Yes, dear friends and colleagues, as freelance professional interpreters we provide our services to a counterpart called the client. Our main contractual duty is to render the interpreting services as agreed with the client, and the client’s main obligation is to pay the agreed fee in exchange for those services. The contract is called: Professional services contract.

Freelance interpreters are independent professionals free to choose the clients they want, under the terms they see fit, and for the service they picked. There is no authority figure over the freelance interpreter. All duties, responsibilities and obligations are contained in a voluntary contract (oral or written), a professional code of ethics, and the legislation governing the profession in a particular jurisdiction.  Client and interpreter are equals. There is no boss.

Bosses exist in labor relations where a part: the employee, is in a subordinate position to the other: the employer or boss, who gives directions, orders, and instructions to the subordinate who must comply with these commands during working hours, in exchange for a fixed wage. Employer and employee are not equals in this relationship. An employee cannot choose what she does. If she does not comply she will be sanctioned and even fired.

Webster states that: a client is “… a person who engages the professional advice or services of another…” Oxford tells us that a client is “…a person or organization using the services of a lawyer or other professional person or company…”

Interpreting is a profession. Interpreters perform a professional service. Interpreters, like all professional service providers, have clients.

Here we see then that we must not call a client a boss because it is inaccurate, and it immediately puts the interpreter at a disadvantage. Calling your client “boss” creates a subservient relationship in your mind that will quickly translate into an attitude and lifestyle. It paralyzes the interpreter as she or he will no longer feel capable or worthy of arguing work conditions, professional fees, or assignments.

For those of you who see judges, doctors, court and hospital administrators, and language service agencies: Eliminate that thought. It is wrong. They are your clients, and you can negotiate and refuse assignments when you consider it appropriate.  Your duties and responsibilities to do a professional top-notch job come from the contract, the legislation, and from your professionalism. You do a good job because you are a professional who wants to provide a good service because you want to keep the client, or you just want to do the right thing. You don’t do it because you have somebody breathing on your neck looking over your shoulder micromanaging everything you do. You do not need someone telling you how to dress for an assignment, or reminding you to get there on time. However, as long as you see the client as your boss, they will act as your employer.

Professional interpreters have clients and charge professional fees. They do not charge rates. A commercial product vendor or a non-professional service supplier do not have clients. They have customers. A customer buys goods or non-professional services from a business. Webster defines them as: “…one that purchases a commodity or service…” Oxford gives more details when it tells us that a customer is “…a person who buys goods or services from a shop or business…” Unlike professionals, these merchants get a rate or a price in exchange for the goods or non-professional services purchased.

Physicians and dentists are professional service providers, so they technically have clients, but for historical reasons, and due to the nature of their services, these service recipients are called patients. According to the American Medical Association’s Code of Ethics (AMA), physicians must be “…dedicated to providing competent medical care, with compassion and respect for human dignity and right.” It also considers that people with an illness must wait to see a doctor or to be treated, and that requires patience. Webster indicates that a patient is “…an individual awaiting or under medical care and treatment…”  To Oxford it is “…a person receiving or registered to receive medical treatment…”

I have observed how many freelance interpreters have a hard time separating their client from others who may participate in the process like vendors and providers. The convention center or hotel events center are not the interpreter clients, they are vendors who provided the facility so there can be a conference. Unless the interpreter hired them directly, they have no contractual relation with the interpreter. They are the interpreters’ clients’ problem. The same can be said for the technical support: booths, interpreting equipment, sound system, etc. Unless they were hired directly by the interpreters, these are also suppliers who have a contract with the interpreters’ client, not with the interpreters. They are not your problem either.

Another common mistake is to confuse the direct beneficiary of the interpretation with the interpreter’s client. Usually, they are not your client. The five hundred people in the auditorium listening to your rendition are the direct beneficiaries of your professional rendition. Without you they could not attend the event; however, they are not your clients. They are your client’s clients. As professionals we must accommodate all reasonable requests by the audience and the speakers, but they are not the ones paying your fee. They are paying your client because they are your client’s clients. For this reason if a person in the auditorium asks you to speak louder, you may consider the request, and even honor it when reasonable; but if somebody attending the conference asks you to take a recorder to the booth and record the rendition for him, you will decline, and direct him to your client (please read my blog post on what to do in this situation).

Dear friends and colleagues, as professional interpreters who provide our services as freelancers we have many clients we choose. We decide who we want as our client, and who we do not. We have the last word on whether we do an assignment, and when a professional relationship with a client must end. We set and negotiate the terms of our work, our pay, and out booth mates.  Employees do not get to do this because they have a boss: the employer. We do not. We practice in a world where we are equals with our counterparts in a professional contractual relationship. We do a magnificent job, we accommodate all reasonable requests of our clients’ clients, and we cooperate and support other providers and suppliers such as facility workers and technical support staff, but we do it because we are professionals and we have made a business decision to keep the client we want to keep, not because we are told to do so. Please stop referring to your client as your “boss”, and the next time a project manager tells you what to wear to an assignment, to be on time; or the next time a hotel waiter tells you not to have a cup of coffee, please stand up for your dignity and that of the profession. I now invite you to share your thoughts on this issue.

In tough times: Raise your fees!

May 14, 2018 § 6 Comments

Dear colleagues:

Globalization has created a world market where we all compete, regardless of our location. Although this has raised professional fees for some colleagues in places with small economies, it has hurt most interpreters to a different degree, depending on whether they stuck to their local economy and clients, or they went to the international market and taking advantage of new technology acquired clients they would have never even considered before globalization. In a market like the United States, with very high speed internet, thousands of airports and flights to every corner of the planet, and a very reliable infrastructure, many of us felt no downturn in our business; in fact, we benefited from the change.

Unfortunately, and without getting into politics, some recent U.S. government decisions, and later changes to the way we did business and conducted our international relations, have created a state of uncertainty, and sometimes resentment, which have affected our profession.

Some of the conferences and international events we had interpreted for many years have been cancelled; others have been moved to other countries due to the uncertainty on the admission of visitors to the United States, as the organizers avoided the risk of investing on a project that a significant segment of attendees could not attend because of their country of origin. For the same reason, many international programs at universities, non-for-profit organizations, and government agencies have been considerably downsized or postponed. The situation for community interpreters is not any better, because less foreigners in the country means less litigation and less foreign investment, which impacts court and legal interpreters; and when foreigners visit the United States less frequently, they use hospital and medical services at a lower rate. This hurts healthcare interpreters.

Faced with this reality, it was time for me to decide how I was to continue to enjoy the same income level despite the new reality we are living; and turn this poison into medicine and even generate more income than before.

Many freelancers get scared when they find themselves in this position, and their first impulse is to lower their fees to keep the clients they have, and to advertise their services at a lower fee than before. They operate under the false idea that money is the main motivator in a client decision making process.

Fortunately, my professional experience has showed me that quality trumps price in everything a client values. That is why people spend more money on a better doctor, a safer airline, and a renowned university. All have cheaper alternatives, but with the things people value the most, there is always a thought that crosses their mind: “It is more expensive but, if not for this, what is money for?” At that point I decided to raise my professional fees.

With this in mind, I carefully studied my client portfolio and classified my clients according to their business value, considering the income they produce me, how frequently they require of my services, the affinity of the type of work I do for them to my personal interests, and the prestige a certain client brings to you in the professional world. I considered a separate category for difficult clients, but to my surprise these were very few, and I needed them for my plan to work.

I immediately realized there were clients on that list I wanted to keep no matter what, and there were others that I would lose regardless of my best efforts. They were in a category where my work was not one of those services that they value the most.

I approached my clients according to how badly I wanted to keep them. If I really wanted them, I would explain this change in person when possible, or by phone or Skype if they were abroad or if their schedule could not fit me within a reasonable period of time. Next, I decided to contact the rest by e-mail on a carefully worded communication that was clear, not too long, and that ended with an open invitation to discuss this raise in more depth in person or by phone if they wanted to do so.

It would be a conciliatory email. No ultimatums, or “take it, or leave it” type of notice. I was out to make friends, not to fight with my clients. I knew that I had two things working in my favor: They already knew my work, and I already knew how they like their interpreting.

For my strategy to succeed, I needed to present my proposal to somebody with the authority to decide. Talking to somebody down the totem pole would be a waste of my time. I decided that I would only talk or write to owners of small companies or agencies, and to senior management in larger corporations, organizations, and government agencies. (There is a video on this subject on my YouTube Channel).

I drafted a talking points memo to be used with my “A” list clients when I told them I was raising my fees. The points I would make to the client had nothing to do with globalization, current American politics, or the uncertain future interpreters were facing in the United States. I recapped the successes we had in the past, and I listed some of the professional things I do for them that are not always found in other interpreting services, but I was not heavy about it. I figured that if they had agreed to talk in person or by phone, it was because they already considered me an asset to their company. It was all about the quality of my professional service and the time and effort I would devote to the success of their conferences, projects, and other events.

I lost some clients, none from the “A” list, all those who stayed with me are now happily paying the new higher fees as they are now getting a more personalized service, and because of this new practice, I have acquired new clients, who were in part, referred by my old clients who stayed with me despite the raise. We now have a better working relationship because they know more about what I do, and their internal decision making process to continue working with me made them realize my true value for their organization.

The lesson learned, dear friends and colleagues, is to face adversity with a cool mind, refuse to give in to fears and peer pressure, and with confidence and self-assurance face the problem and win. It is always better to make more money when appreciated, and an added benefit is that instead of contributing to an even bigger depression of our market, you will do your part to pull it out of the shadows of uncertainty. I now invite you to share with the rest of us what you are doing to win as a professional interpreter in this new reality of globalization and political uncertainty.

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