August 29, 2018 § 6 Comments
The Association of Language Companies (ALC) effusively announced that on August 8 of this year “leaders from the language service industry gathered on Capitol Hill to sound the alarm over new <disruptive> employee classification regulations that threaten to upend the $45 billion-per-year industry’s business model”.
Over fifty individuals attended their “policy summit” to “strategize an industry-wide response to the recent California Supreme Court ruling which narrowed the definition of who can be classified as an independent contractor”.
As part of a public relations campaign, many of these agencies’ representatives have been telling interpreters that the California Supreme Court decision is terrible and, unless it is neutralized, it will effectively destroy the interpreting “industry” leaving thousands of interpreters with no work. Without even hearing the details of the decision, and knowing how it will affect them as freelancers, not as agencies, some of our good colleagues celebrated the agencies’ lobbying efforts, and even praised them for “saving our source of income”.
I agree that the Dynamex decision by the California Supreme Court will affect freelance interpreting, but I disagree it will hurt independent interpreters and it will be the end of our profession as we know it. This court decision is a rare occasion when judicial decisions favor independent professionals over the special interest groups financed by the big multinational agencies, and if independent interpreters play their cards wisely, it will bring huge benefits to them. Let me explain:
We should start by understanding what the California Supreme Court decided on April 30, 2018 in Dynamex (Dynamex Operations West, Inc. Petitioner S222732 v. The Superior Court of Los Angeles County, Loa Angeles County, Respondent; Super Ct. No. BC332016, CHARLES LEE et al., Real Parties in Interest).
In an 82-page decision, the Court rejected the Borello test to determine whether workers should be classified as either employees or independent contractors for the wage orders adopted by the California Industrial Welfare Commission, for a worker-friendly standard that may change the independent contractor market. The California Supreme Court embraced a standard presuming that all workers are employees instead of contractors, placing the burden of proof on the agency or other entity classifying an individual (in our case the interpreter) as an independent contractor. For those of you who practice court interpreting: This is similar to the prosecution burden of proof in a criminal case. Although not subject to a “beyond a reasonable doubt” standard, companies, agencies, and other entities must overcome the legal presumption of employment (just like the presumption of not guilty in Criminal Law).
But, where does this decision originate?
Dynamex is a nationwide same-day courier and delivery service offering on-demand same-day pickup and delivery. Before 2004 Dynamex classified all of its California drivers as employees, but staring in 2004 they converted all of their drivers to independent contractors to save money on employee benefits and expenses related to income tax retention. A year later, a driver named Charles Lee entered into an independent contractor written contract with Dynamex. After leaving his work at Dynamex, Mr. Lee filed a class-action lawsuit on his own behalf and that of other drivers in a similar situation against Dynamex. During their time working for Dynamex, these workers had to work during the hours and according to the schedule unilaterally set by Dynamex; they received direct and strict direction from Dynamex in a subordinate relationship instead of an equal-to-equal relationship as expected by independent contractors, and the drivers could not work for someone else because they were always working for Dynamex under the described conditions. They alleged that Dynamex had misclassified them as independent contractors in violation of State law, including various sections of the Labor Code and the Business and Professions Code Section 17200 (engaging in unfair and unlawful business practices).
The case went through a long litigation in California until it finally reached the Supreme Court where the Court framed its decision by broadly characterizing the misclassification of independent contractors as harmful and unfair to workers, honest competitors, and the public. The Court did a long and detailed analysis of precedent, analyzing Borello, Martínez and Ayala v. Antelope Valley Newspapers, Inc. (59 Cal. 4th 522, 527. 2014)
The California Supreme Court rejected Dynamex’s arguments for applying said previous cases. Instead, the Court adopted the ABC Test to determine if an individual is an employee or an independent contractor. Under the test, a worker will be deemed to have been “suffered or permitted to work”, and thus an employee, unless the employer proves:
- A. That the worker is free from the control and direction of the hiring entity in the performance of the work, both under the contract for performing the work, and in fact.
- B. That the worker performs work that is outside the usual course of the hiring entity’s business; and
- C. That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
Each requirement needs to be met for the presumption that the worker is an employee to be rebutted, and for a court to recognize that a worker has been properly classified as an independent contractor. If a worker is classified as an employee, the employer must pay Social Security and payroll taxes, unemployment insurance taxes, state employment taxes, worker’s compensation insurance coverage, and all Labor Law rules and conditions regarding wages, vacation, sick leave, overtime, maternity leave, etc.
Bringing the Court decision to the interpreting field, we find that most agency-freelance interpreter relationships will fail the ABC test.
Agencies would fail “A” because they micromanage interpreting assignments. From checking in and out when arriving or leaving the site of interpretation, to endless paperwork required for payment and other “rules”; not forgetting ridiculous dress codes, and other one-sided rules such as not talking with the client about interpretation.
They would also fail “B” because it would be extremely difficult to argue that the fact that an interpreting services agency is hiring an interpreter as an independent contractor, constitutes a service outside the course of the agency’s business; and
They would fail “C” because they hire the interpreter according to such schedules they cannot render the services anywhere else, they make them sign non-compete contracts, force them to hide their personal business from the client so the agency does not lose the client. In other words: an outsider could not see the difference between a staff interpreter working side-by-side with an independent contractor.
Now you know, the “industry leaders” are spending their money in lobbyists so they continue to pay rock bottom fees to most interpreters with no risk. They keep the money and the interpreter gets close to nothing, without having a say.
I don’t want you to think that all agencies are bad either; I happily work with some who respect me as a professional. I am not saying that freelancing is bad. I do not want to be considered an employee of any agency or other entity.
I do not support what the multinational agencies are doing for three reasons: First, because I want to be the one who decides if I want to be an independent contractor or not. I do not want to leave the decision in the hands of greedy one-sided “industry leaders”. Second, I think that been treated as employees would be great for many colleagues who could not succeed in the freelance market. They would get a decent wage, and many other social protections that otherwise they would lack if they continue to freelance for those agencies who bring in the money for the shareholders (nothing wrong with that) and pay very little to the interpreter, so little it is not enough to afford a decent health insurance coverage and a retirement plan (this is wrong). My third and very powerful reason not to support this lobby effort is very important:
Now that there is a court decision that favors independent contractors in California, interpreters should seize the moment, take advantage of this leverage, and negotiate a system that benefits all professional interpreters: those who want to be staff and those of us who will continue to freelance. A system that keeps agencies in business, but eradicates the one-sided system most interpreters (out of necessity or because of lack of negotiating skills) endure today. I propose this:
Raise our voice so the non-interpreters in the field (aka: the “industry leaders”) do not get away with passing one-sided legislation as they are trying right now. We have to act with energy and decision because they are pursuing an option as nefarious and unfair as the “Major League Baseball” exception Congress granted once and landed thousands of professional ballplayers in servitude where they could be bought, traded and sold having no input.
These “industry leaders” argue that Dynamex should not be applied to them, because they are not part of the “gig” economy. They told Congress they “exclusively” work with “…highly-trained and educated professionals whose success is dependent upon the highest quality of work…” adding that “…to be a professional linguist takes years of education and training…” They mentioned the State Department interpreters as an example. I wonder why they did this instead of mentioning the many interpreters they hire without a college degree but with a high school diploma, or how they justify laborer pay for such illustrious “linguists”.
We do not have the funds to lobby against this multi-headed hydra, and we cannot go to our largest professional association because it will not go against the interests of its corporate members, and they may even share the same lobbyists as the “industry leaders”. What we have is the right to testify in congress, appeal to the ACLU for help if needed and pertinent, and most important: We have our professional services and skill as leverage.
I wonder why we need to change the law and attack the Supreme Court decision. If agencies really want to work with the best, professional, trained, and experienced, they should have no problem complying with the ABC criteria. The problem is, dear colleagues, that they do not want the brightest professionals, they are too expensive. They want the high school diploma new paraprofessional interpreter who will work for a pay similar to Wal-Mart’s, and to avoid mistakes, she must do it under micromanagement conditions. They do not want the best because they would risk to lose the client. They want somebody so afraid of losing this laborer’s salary job, that he will never dare to tell the client he interprets independently from the agency, even when the client already knows it and sees this situation as ridiculous.
Interpreters, however, could join the “industry leaders” as a common front to pass legislation fair to all parties. Instead of eliminating the criteria in Dynamex, a fair legislation should allow for interpreters to opt out of the employee reclassification and remain as freelancers if they do it freely, with no coercion by the agency or other entity retaining their services, and both, the written contract and de facto performance demonstrate this was not a sham by the agency, but a real independent contractor. Interpreters could then negotiate with the retaining agency a professional fee that truly depicts their freelancer status and not an employee working under serfdom conditions.
At this time in California, and unless the law changes, interpreters should demand compliance with the ABC rule. As of today, with the Supreme Court decision as the supreme law in California, compliance protecting interpreters and our profession is possible:
“A” can be overcome by negotiating a written contract that clearly leaves the interpreter free of the agency’s control. It clearly states that interpreters will deliver the service they are retained for, but all conditions to implement the service and fulfill the obligation are left to the interpreter. No more stupid paperwork that requires hours of unpaid time; no more micromanagement in the contract and in the real world.
“B” will be more difficult to overcome, especially for the smaller agencies because the multinationals have so many other businesses through subsidiaries it will be costly, but possible to solve this requirement. Remember that it is the agency’s burden, so you need not worry about this one.
“C” is your real leverage. The agency cannot overcome this requirement without the interpreter’s cooperation. You will have to show that you have a website, or an office where you offer your services to other prospective clients; you will show you are a real independent contractor by showing the authorities how you are not contractually bound to secrecy when a client asks you for your services during an assignment with the agency. More important: without your cooperation, the agency can never prove this requirement.
We must educate ourselves so we do not jump up and down as cheerleaders to support this public relations propaganda campaign. Seize the moment and change the landscape. Make these “industry leaders” live up to what they preach and, using their own words, demand they only hire the highest quality of professionals with years of education and training. We can support them in their lobbying efforts, but only when all professional freelance interpreters are paid professional fees. Do not listen to those colleagues who live in fear, worship these agencies, and think they are doing them a favor by hiring them to work. There cannot be an interpreting agency without interpreters. There can be interpreting services without agencies. I now ask you to share your thoughts with the rest of us, and please be advised that comments defending agencies will not be posted. They have plenty of media outlets to proselytize. Here we want to hear the voice of the interpreters.
June 4, 2018 § 8 Comments
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.
August 17, 2015 § 2 Comments
Interpreters have to make work-related choices on a daily basis: from the word that best conveys the message in the target language, to the subject matter we are willing to interpret, to the work conditions we agree to. All decisions are very important for our professional development and lifestyle, but today I want to talk about another decision that all interpreters, especially freelancers, have to make every now and then.
We all know that the work of the interpreter goes beyond what people notice when they see us in the booth, the courtroom, boardroom, or hospital. We have to set aside time to study, prepare for an event, travel, and perform administrative duties. Most people do not see us while we are taking care of these activities, which are time-consuming and essential to our work. These aspects of our profession, however, allow some flexibility. Unlike real-time interpreting which needs to happen when the conference, court hearing, or business meeting take place, all other duties can be fulfilled whenever we decide to do them: weekends, nighttime, and so on. They rarely create a conflict in our work schedule.
As interpreters we all know that there is an “unwritten rule” that says that you can go without an assignment for some time, but when a very good one comes your way, another one, as good as the first one will follow shortly, often on the same dates. We can be available four days in a week, but the two good assignments will require of your services on the same three days. Most of you can relate to this dilemma, and those who cannot… just wait a few years and you will.
Deciding which one of these assignments you will have to turn down is one of the most difficult things we face as interpreters, especially when both clients are good, loyal companies or individuals who have had a long professional relationship with you. And it gets more painful when you particularly like the assignments, when you have enjoyed doing them in the past, and when they pay really well. To complicate things even more, it is common to take a job just to get another offer for one that pays even better a few minutes later. My question is: What should we do when this happens?
I recently faced this situation twice: I agreed to do a very prestigious and interesting conference and a few days later I was asked to do a sports interpreting assignment that I truly enjoy; the only problem: they were on the same dates. A few weeks later, I was already preparing for a conference when I was asked to do another event on the same dates at a beautiful beach resort.
The logical thing is to turn down the second offer, and that is exactly what I did on both occasions, but it really hurt. I agonized over these decisions not just because the second assignment was something I love to do in the first case, or because it was in a place I enjoy visiting in the second case. The decision was complicated because these were all good clients who count on me for these events. The concern of losing the client was more important than missing the assignment.
There are times when you have to take the risk of upsetting the client, even after you do everything you can to explain the reasons why you cannot say yes to the job, but you can do certain things to minimize the damage and to keep the client whose assignment you are turning down: My rule is that when this happens, I talk to the client who requested my services second, I explain to them that it is not personal, that I truly enjoy working with them, and that I will be there for them when the next one comes around. I offer to help in every way I can, short of interpreting, to make sure they have a successful event. I even refer them to some trusted capable colleagues who I know will do a great job and will not try to “steal” the client. Depending on the circumstances, I may even provide the interpreters who will subcontract with me. All these points are explained to the client, and they usually agree.
However, there are times when after assessing the two assignments, I opt for the second event, and do the same I explained above, but for the first, original client. I rarely do this, but I do it when the subject matter, location of the assignments, and other factors lead me to believe that both clients will be better served if I physically work the second event. Many times the original client agrees, the services are top notch at both assignments, and I get to keep both clients happy. Of course, I would not even dare to attempt this option with a client I know may get upset or feel abandoned by me if I were to propose different interpreters after I already told them I would personally do the job. You need to know your clients very well before you do something like this.
In those cases when neither client agrees to a “Plan B”, and they both demand that I physically interpret the event, I had to make the always tough choice of deciding which client I rather keep. If I concluded that the second client was more valuable to me in the long run, I have graciously declined the first assignment, provided that I was not exposing myself to civil liability, and never doing it at the very last minute. That is the life of a freelancer.
Years ago, when I did more court interpreting, I would sometimes double-book myself in cases when I knew that the chances of a case going to trial were very slim. I would let the second client know that there was a small chance that I would not do the job myself because of that potential trial, and that if that happened, I would provide other trusted and capable professional interpreters to cover the event for me. As those of you who regularly work in court know, the trial almost never happened, and I did not lose work. The courthouse did not need to know because my commitment to the trial was absolute; in other words, if there was a trial, I would be there, no question about it. I now ask you to share with the rest of us your thoughts and experiences when presented with this situation, and please tell us how you dealt with this problem.
February 6, 2015 § 1 Comment
Most interpreters are (or were) freelancers in the past. Even many of my colleagues who work as staff interpreters for the government or the private sector do some freelancing on the side: After hours and weekend assignments come to mind.
Although most of us do freelance work, it is also common to run into a colleague who is terrified about the business aspect of the profession. There are so many times when I have listened to my interpreter friends describe themselves as “good interpreters, but bad businesspeople”. I know colleagues who have turned down an assignment because the negotiations with the client were too intense or because the paperwork was so demanding. I understand. I have been lucky and I enjoy the business aspect of the profession, but I recognize that sometimes even the most experienced professionals face scenarios where some specialized knowledge comes in handy. Fortunately, I am going to share some good news with all my interpreter friends and colleagues: Help has arrived!
Today I want to talk about Marta Stelmaszak’s new book: “The Business Guide for Translators”. Despite the title, this is a book that speaks directly to all interpreters, as it covers all of our problems, addresses all of our concerns, and lives up to our expectations.
As most of you know, Marta is a professional interpreter and translator, accomplished author, teacher, scholar, and an entrepreneur. She has been a superstar of the profession for quite some time, a popular blogger, and her online “Business School for Translators” is one of the most popular educational tools for interpreters and translators. I should also disclose that Marta is a friend, that I admire her immensely, and that I got the book as a present.
“The Business Guide for Translators” is a 158-page book that reads easily, it is well-written and throughout the book you get the feeling that Marta is having a conversation with you. It is remarkable how so many complex concepts are explained in plain language so that lay interpreters can relate to the issue, and to the proposed strategy to avoid or solve a problem.
Marta divided the book in four chapters: On the first one: Economics, she deals with the basic concepts that all businessperson should know and understand. After reading the chapter, even the most business-challenged individual will be able to grasp the essentials of capital, supply, demand, investment, inflation and competition. The second chapter is entitled: Strategy. Here, the author explains the ideas of core competence, competitive advantage, value curve and chain, as well as customer segmentation; next, she shows the reader how these principles act in the language industry world, and she presents some well-known strategies while at the same time she encourages the readers to take action in their own lives. The third chapter is called: Business Management. In this part of the book, Marta assumes that the reader has become acquainted with all the basic concepts and strategies, and she is ready to take the language professional by the hand from the beginning. The chapter addresses everything from market research and a business plan, to the delivery of a service that represents an outstanding value, and the growth of the business. The last chapter: Business Practice, is a practically-oriented chapter full of advice, suggestions, and examples on how to contact the new client, how to negotiate the terms of the professional relationship, and how to provide the service, including the follow-up phase.
This book applies to what we do. As an interpreter herself, Marta writes from the start that the book is addressed to all language professionals. You can order the book from http://www.wantwords.co.uk/school/business-checklist-book-translators/ I read the book in one day and I recommend it. I also invite you to order it, read it, and keep it handy for future reference. Marta has given to all interpreters and translators a “Rosetta Stone” for language-related business. I now invite all of you to share your interpreting business-related experiences and how you solved them, and I especially would like to hear from those of you who already read the book.
Who should interpreters target as their clients in a world where many want to pay lower fees? Part 1.
July 28, 2014 § 15 Comments
I consider myself very lucky because my job takes me all over the world; this allows me to see many of my friends and colleagues as I visit their towns and countries, and also gives me the opportunity to keep up with the local interpreting and translation issues that are impacting that particular area. It gives me great joy to hear about the personal and professional accomplishments of so many talented friends; and unfortunately, I also get to see the sadness, anger and frustration of so many who are working under conditions that no professional should suffer or tolerate. I cannot tell you how many times I have listened to these horror stories where the main characters are permeated by mediocrity, ignorance and lack of ambition. It was after one of these episodes, not long ago, that I decided to write about this topic in order to identify the problems and propose some solutions that have worked for me and for other colleagues in the past. This topic is broad and will require of several posts. I will address separately on three different posts the situation of court interpreters, community interpreters, including health care interpreters, and conference interpreters.
First I will talk about the court interpreters because they are a large part of the interpreting community in the United States (only second to military interpreters) and they are a growing segment of the profession in many countries around the world. When I think of many of the freelance court interpreters I know, one thing that puzzles me is: how can they be happy and fulfilled working under such conditions? In certain administrative courts they are paid very little money, sometimes they do not get Per Diem when traveling to another location, and on top of that, they are not treated like professionals. They are required to get paperwork stamped and signed by others, sending the message that because they are not trustworthy, somebody else needs to watch what they do; And by the way, if they want to get paid on time they have to be willing to accept a smaller paycheck (there is a pay cut policy in exchange for faster pay). Of course this is an extreme case, and I would have called it the worst if this article had been written before the United Kingdom court interpreter fiasco that insulted capable professional interpreters in their professionalism and in their pockets. Of course you all know what happened over there and we are all familiar with the ever-bigger problems in the British justice system. Enough for now, but I will return to the United Kingdom court interpreter saga later on this post.
If you think that things get better for those interpreters who freelance in the state-level court system of the United States because these are not administrative courts, you have not worked there for at least a decade. At this level, in most states, interpreters make a little more money than those working the immigration court system, but they are still getting a laughable fee for their professional services. This low pay does not feel any better when you combine it with rules and policies designed for laborers and not for a professional service provider. I am talking about agency-controlled state court markets, incomprehensible policies that are keeping good interpreters from making a decent income in civil cases, the “annual payment limit” contained in some states’ independent interpreter contracts, the “even distribution” of work policy of other states where good and mediocre interpreters basically get the same amount of work from the state as long as they are state-certified, or the backwards legislation that gives certification and oversight of court interpreters to the state judiciary in a state where this was not the case, and now will pull interpreters down to the same level of the other states where the same party that hires certifies. A move unheard in other professions like lawyers and physicians, but even celebrated by many interpreters in this state. Add to this landscape all the endless and ever-changing micro-management requirements by local courthouses, many other rules that I will just skip for the sake of brevity; and finally, throw in there the agencies that are run by people with no formal education, experience, or practical knowledge of interpreting (as the ones who procure interpreting services for most administrative courts) and pay their interpreters even less money, and you will have the big picture; the same picture I see every time I hear a new story, learn of a new travesty, or witness a horrendous performance.
Dear friends and colleagues, I cannot help it, but it is at about this time that I always wonder why my friend or colleague is still working as a court interpreter under those circumstances! The answer is simple and complex at the same time. Simple because as a freelancer all it takes is a moment of courage when the interpreter decides: Enough! No more. Complex because not everybody is willing or capable of making this decision. Different people, different priorities, different ideas, different set of values, and different goals in life. Although I have belonged to the former group all my life, I understand those who belong in the latter. The thing I cannot understand is why they do not take action and change things for themselves, and maybe for their profession at the local level.
It is possible that many people living under the circumstances described above will not be able, for different reasons, to move on to another type of interpreting assignments, but they can always pick their clients wisely. Let me explain:
One thing I have never understood is why on earth so many of my freelancer colleagues see themselves as court employees. I have heard hundreds of times how they introduce themselves as interpreters for the courts; I have heard them refer to court administrators, court clerks, judges, and staff interpreters as their “boss”! Obviously this immediately tells me that if they see the court, the interpreting agency, or the state judiciary as their employer, they cannot see them for what they really are: their client.
Once the interpreter comes to terms with this issue, and understands that she does not work for anyone but herself, she can focus on picking her clients. She will soon realize that mediocre interpreting agencies, state judiciaries, and even the federal court system are nothing but clients, and clients that pay very little (some of them rarely on time) in exchange for what they expect from the interpreter. They pay low fees for the interpreting service, but many of them want you to do so many other things for the same token fee: these interpreters must prepare endless paperwork, learn (sometimes absurd) court or agency policies that are only applicable to that particular courthouse, translate documents in between hearings, attend (often self-serving) unpaid meetings scheduled by the agency or court administration; and many times they demand, without saying it, exclusivity and they “punish” an interpreter who cancels the assignment for a better paying professional opportunity. Once the interpreter sees them as another client, she will realize that, because of their practices and philosophy, they are not at the top of her client wish list, and she will understand the need to find better clients.
Now the question is: If all interpreting agencies that control the administrative courts, and all state-level court systems are not to be considered as top clients, what else is there? The answer is: The good clients!
All interpreters who want to make a decent living in the legal field need to provide their services to the private bar. It is true that in the United States the states are now observing Title VI of the Civil Rights Act, and in many cases the states are keeping independent interpreters from working any civil cases unless paid through the courts; but even under these circumstances, there is plenty to do. First, those of you who live in states where independent freelancers coexist with state contractors, and are allowed to provide their services in civil court to those who turn down the court-appointed interpreter and prefer to hire their own, you should enter this field full-blast. The federal system does not provide court appointed interpreters in civil cases, and for those who are federally certified this is another option, in fact, it is a much better option than working criminal cases for the federal court system because the pay is much better.
The main option available to all of those who have a valid certification at some level (state or federal. Private language agency certifications are not considered valid) is to become a legal or “out-of-court” interpreter instead of a court interpreter. Legal interpreters provide their professional services to Law Firms and attorneys for depositions, office interviews, witness preparation, jail visits, expert opinions, expert testimony, transcription and translation services, and even in court at the plaintiff’s or defense’s table. Interpreters negotiate their fee with these attorneys; there are no pre-set limits, no endless meetings, and for the most part, the cases are interesting: there is more variety in civil court; and the cases that you should go after involve enormous amounts of money in damages. These are the type of clients I try to have, and I spoil them, pamper them, and protect them with the best service you can find anywhere. The point is, my court interpreter friends and colleagues, if you don’t want to move to a bigger city, if you don’t want to travel, or to learn a new field, the next time you get angry because of an absurd new rule, because you are not getting paid on time, or because you got tired of being treated like a laborer instead of a professional, stop working for the system, get out there and look for the big clients: the large law firms, the corporate legal departments, and talk to them; sell them your services, and start enjoying your career once again. Who knows? If enough good interpreters leave the system, the system will have to hire mediocre individuals, and sooner or later the government will have to sit down with you and talk fees and other work conditions. This is what is happening in the United Kingdom where a group of courageous, determined, and brave interpreters walked out and never went back. They made history, inspired us all, and showed us that although difficult at the beginning, there is life after the courthouse. I invite you to share with us your opinions and comments, and I ask you to avoid name-calling, specific cases, and arguments defending agencies or the court interpreter wages.
March 4, 2014 § Leave a comment
If you are a federally certified court interpreter in the United States you have surely provided interpretation services at the request of private attorneys, who are part of a panel kept by that district, according to the United States Criminal Justice Act, commonly referred to as the CJA (18 U.S. Code § 3006A) These attorneys, and I will refer to them as CJAs in this posting, are private lawyers appointed by a federal district court judge, or a federal magistrate, to represent a party who cannot afford his own private attorney in cases where representation by the Office of the Public Defender is not possible because of the physical location of the defendant or due to a conflict of interest. In other words, when there are codefendants and one is represented by the federal public defender, all others must be represented by private counsel or by a CJA panel attorney. CJA attorneys are known to most court interpreters because they are always at the courthouse, just like the public defenders. They have a big caseload, and many of their clients do not speak English. Because of defendants’ constitutional rights and the Civil Rights Act of 1964 these non-English speakers have the right to an interpreter that is also furnished under the same Criminal Justice Act: “…Representation under each plan shall include counsel and investigative, expert, and other services necessary for adequate representation…” (18 U.S. Code § 3006A) Federally certified court interpreters are asked to interpret during client-attorney office interviews, trial preparation, jail visits, and similar services requested by the CJA attorney. After the service is performed, the interpreter must prepare and submit to the District Court a CJA invoice form that the panel attorney signs. Once the form is submitted and verified for accuracy and completeness by the court’s financial department, it is sent to the federal district court judge or magistrate who has been assigned to that case for approval and signature. It is only after the judge signs the form and returns it to the court’s financial department that the interpreter gets paid. This process can take, depending on the district court, from one week to a month in average. All interpreters know this and accept it as part of the life of a freelancer. I should mention that this seemingly bureaucratic process is attractive to the freelance interpreter because of volume. In fact, in districts where there are several staff certified court interpreters this may be the bulk of the freelancers work for the courts.
Unfortunately, there are certain cases where this simple and straight forward payment process is unconscionably delayed. There are federal district court judges in the United States who hold back payment for incredibly long periods of time and there is no apparent reason or justification for this delay.
Dear colleagues, I am not talking about late filings or incomplete voucher forms; I am talking about withholding of invoices for no cause. I am afraid that there may be more that one judge following this practice; there is one among them, who shall remain anonymous in this blog, who has generated comments from colleague interpreters such as: “…Oh, that judge! One time it took well over a year to get paid for a half a day interpretation…he just didn’t approve the form any sooner…” And this one depicting the interpreter’s feeling of impotence: “…it always takes many months to get paid, but nobody dares to say anything because…well judges are appointed for life…” Finally, an interpreter summarized it very graphically in these words: “…the judge doesn’t care. There may be other priorities, but unlike federal judges, we cannot afford to go months without payment. We have to put food on the table for our families…” This particular judge has been on the bench for many years, by all accounts seems to have a good grasp of the law, but when it comes to other judicial skills, this judge has received poor reviews from a judicial evaluation commission such as: “…(the judge has exhibited) slowness when it comes to ruling on motions…” or: “…lack of punctuality to convene proceedings…” and even “…(having) poor judicial temperament while on the bench…” The judge was described as: “impatient,” “a yeller from the bench,” “mean spirited,” and “angry.”
I want to make it very clear that most judges and court clerical staff do a very good job at processing invoices and making sure interpreters are paid on a timely manner. Judges like the ones described above are the exception to the rule; but they exist and will continue on the bench.
Faced with this reality what can interpreters do to get paid on time? First the interpreter needs to make a distinction between those cases where the interpretation services have been rendered and the judge is procrastinating, and the cases where no service has been rendered yet.
For the first scenario there are the usual remedies that we all know: Talk to the chief staff interpreter once again, write to the clerk of the court, file a duplicate form with the court’s financial department; even talk to the judge’s clerk and explain your situation. This may accomplish the objective in some cases, but unfortunately it will fail most of the time because the approval of the form is not being delayed by any of these people. It is the judge who created the problem. So what is there left to do? Well, there may be a legal answer: The American legal system contemplates situations when the authority does not comply with its duty of doing or abstaining from doing something: The Writ of Mandamus. This may be an option available to the interpreter. The request for a Writ of Mandamus can be filed with the Court of Appeals having jurisdiction over the procrastinating district court judge asking the higher court to order the approval or denial of the interpreter’s invoice. “…(Courts) may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law…” [28 U.S. Code §1651(a)] Of course, before the interpreter decides to take this step, he must consider the consequences: (1) Because this blog is not giving any legal advice to anybody, the interpreter must consult with an attorney to see if a writ of mandamus is possible in that specific case; (2) The district court judge may simply deny the invoice. The writ can order that the authority take action but not the outcome of this action. Of course this may open other channels to the interpreter to appeal the judge’s decision on the invoice and that way get paid; and (3) The practical consequences of filing the petition including the possibility of being branded as a “troublemaker” by others, which could result in the loss of business and therefore the loss of income.
When the interpreter has not provided any interpretation services yet, that is, when interpreters are first contacted by the CJA attorney (or by the district court depending on the district) to request the interpretation services, the interpreter should always ask who is the judge in that particular case, and if it turns out to be a procrastinating judge’s case, the interpreter should refuse the assignment. Remember, you are a freelancer. Freelancing means that sometimes you may have to wait forever to get paid on a CJA voucher, but it also means that you are free to ban all procrastinating judges if you want to. The best way to avoid late payments is to avoid those clients who are always late. In fact, the interpreter should explain to the CJA attorney the reason for declining the assignment and reassure him that cases from all other federal judges will be accepted as usual. This should solve that interpreter’s problem. It may be very difficult to fix this procrastinating judges situation for all interpreters in all cases, but at least you will get paid on time.
Finally, I remind you again that this posting is not giving any legal advice to anybody, and I ask you to share with the rest of us your experiences and solutions to this terrible problem, and please do not mention any names.