What we learned as Interpreters in 2019.

January 13, 2020 § 6 Comments

Dear Colleagues,

Now that 2019 ended and we are working towards a fruitful and meaningful 2020, 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 2020 I worked with magnificent interpreters and many of my dearest colleagues.

Our profession had positive developments this year:  For the first time our African interpreter and translator colleagues gathered for the First Africa International Translation Conference in Nairobi, Kenya. I had the fortune to attend the event. It was an eye-opener to see how many capable colleagues from all corners of Africa, and many other places in Europe, South America and the United States were committed to have an excellent program full of content. This conference was attended by true professional interpreters and translators who exchanged opinions, attended workshops and presentations, and enjoyed the beauty of Kenya and the enthusiasm of the local interpreters and translators. On a personal note, I had the privilege to be invited to lecture in front of hundreds of language, translation and interpretation students at Kenyatta University. This was an experience I will never forget. After the conference, our Kenyan colleagues organized a safari which I attended. Another unforgettable experience. In 2020 African interpreters and translators will build on top of last year’s accomplishments and hold the Second Africa International Translation Conference in Arusha, Tanzania.

Another “first” took place in Buenos Aires, Argentina, where the Argentine Association of Sign Language Interpreters (AAILS) held its first conference entitled: “1 Jornada de AAILS”. The event was attended by Argentine Sign Language interpreters from all over Argentina, and by interpreters of other languages and representatives from other translation and interpreting organizations from Argentina and abroad. I was lucky to participate in the preconference workshops and the conference itself. The presentations were educational, fun, and informative. I was pleasantly surprised by the level or participation and the energy and talent of the board members and others who collaborated to the success of the conference.

The interpreting profession in Mexico is stronger every day as evidenced by the Organización Mexicana de Traductores’ (Mexican Translators Association, OMT) very successful conference in Guadalajara, with more presentations directed to interpreters than ever before; The Autonomous University of Hidalgo’s University Book Fair and content-packed conference in Pachuca; and the every-year more successful court interpreter workshop and conference for Mexican Sign Language (LSM) in Mexico City once again. This year’s edition added the participation of Mexico City’s prosecution agency (Procuraduría de la Ciudad de Mexico) to the impressive list of international guests, magistrates, judges, and attorneys already collaborating to the success of this project.

The Brazilian Association of Translators and Interpreters (ABRATES) gave us the biggest show of the year with its magnificent conference. Hundreds of interpreters and translators from all over the world gathered in Sao Paulo, Brazil to learn and exchange experiences on a wide variety of subjects, from academic content to business practices, to the most recent developments in technology, to networking, this was a very-well organized, unforgettable experience.

There were many conferences in the United States: the National Association of Judiciary Interpreters and Translators in the United States (NAJIT) held an attendance record-breaking conference in Nashville, Tennessee, The American Translators Association (ATA) had its every-year larger, and more expensive conference in Palm Springs, California, but the one to single out because of its content, organization and attendance, was the Midwest Association of Translators and Interpreters (MATI) conference in Chicago, Illinois. This was a most-needed conference in the Great Lakes Area where many interpreters and translators live and practice, but few quality events are offered. Those who attended the event will be back in 2020 when the conference will take place in Wisconsin, and no doubt they will invite their friends.

On a year packed with great conferences and workshops, interpreters need to know that the prestigious biannual Institute of Translation and Interpreting (ITI) conference took place in Sheffield, England, with an all-interpreter dedicated track. Some of the best-known, most capable interpreters from Europe and elsewhere shared their knowledge through very interesting, informative, and provocative presentations in an atmosphere like only interpreters can create. This, added to the well-known, high quality translation program, and a spectacular venue, made the conference a second-to-none event. I enjoyed it very much, and developed (and renewed) wonderful friendships with great colleagues.

In some parts of the United States, this past year saw the beginning of important changes in the way interpreters and translators provide their services, empowering the individual and limiting abusive practices by language service agencies. Unfortunately, big corporations and small entities seeking to keep the one-sided labor market they have enjoyed for too long, sold some interpreters the idea these changes hurt them, when in reality they only hurt agencies and leave interpreters and translators free and empowered to provide their services without expendable intermediaries. Sadly, instead of using their time and energy to educate direct clients and explain that services would now be provided without the middle guy, these agencies talked some colleagues into defending the interests of the agencies under the misconception they were defending themselves. The year brought positive developments to the largest court interpreter association in the United States. After a few years of problematic ineffective leadership, during the second half of 2019, a majority of the NAJIT Board elected a truly capable, respected professional and proven leader to be its Chair. Now the association faces a promising future.

Once again, this year saw the growth of our profession in Remote Simultaneous Interpreting (RSI). Unfortunately, much of its growth was in home RSI where interpreters, who are not technicians, and cannot control their neighborhood environment, or their country’s infrastructure, are exposed to civil liability while the agencies that hire them remain silent on the subject and professional insurance policies will not cover such events. Combined with the agencies’ growing tendency to hire RSI interpreters in developing countries (where infrastructure is not as reliable as it is in the United States, Japan or Europe) at a fee considerably lower than their counterparts in developed nations, to maximize profits, is the biggest threat our profession will face in 2020.

Unfortunately, 2019 will forever be remembered as the year when the largest association of interpreters and translators in the United States elected as “president-elect” a person who holds no certification as an interpreter or translator despite allegedly working with some of the most common, widely used languages. This creates a serious image problem to the association because there are only two possible explanations when a person is around for many years, claiming as working languages, combinations where certifications are readily available: Either the person has no certification because owners of agencies who do not interpret or translate do not need them, in which case interpreters and translators will have as president-elect an agency owner, not a colleague; or the person translates or interprets without a certification, in which case ATA members will be represented by a person who makes a living by doing exactly what the association fights against: translating or interpreting without being certified. Very sad.

2018 will forever be remembered as the year when ineptitude destroyed the credibility and reputation of the Spanish language federal court interpreter certification exam, until then most trusted interpreter exam in any discipline in the United States. Even though there were two examination rounds in 2019, nobody has been held accountable at the Administrative Office of the United States Courts (AOUSC). The year that ended a few days ago corroborated that ineptitude unacceptable in the private sector has no consequences in the federal government.

Throughout the world, colleagues continue to fight against low pay, deplorable working conditions, favoritism, ignorant government program administrators, and other problems. Some 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.

No year can be one hundred percent pariah-safe, so we had our “regulars” just like every single year: 2019 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 focus on the good things while I guard against the bad ones. I wish a Happy and Productive New Year to all my friends and colleagues!

The very real dangers of Remote Simultaneous Interpreting from our home.

October 17, 2019 § 18 Comments

Dear colleagues:

The idea to write this piece came almost a year ago when talking to some interpreters I noticed a growing tendency to quickly move the still very young remote simultaneous interpreting (RSI) from the studio to the interpreters’ homes. I conversed with many of my colleagues throughout the world, attended conferences where the topic was discussed, spoke with clients, event organizers, and I also had long, detailed conversations with lawyers and people from insurance companies.

RSI is a true achievement of science and technology, combined with interpreting expertise by some prominent interpreters. Many of its more serious technological issues have been solved, and we are at a point where quality interpreting can be delivered remotely when done as many of my colleagues and I understood it was supposed to be done.

My personal experience, and that of other trusted interpreters, show Interprefy and Kudo (which I have not tried yet) as the most user -friendly platforms, and technology is not the only reason. These platforms were carefully developed with great input from experienced professional interpreters whose comments, suggestions, and opinions were essential to the final product. Unlike others, from the beginning, the people behind these platforms understood RSI was a different way to deliver professional interpreting services; they recognized that quality interpreting can only be delivered when interpreters interpret under the most favorable conditions. Their success depended on getting the best human talent, optimal working conditions, and the best support team. They presented a serious, viable alternative to in-person interpreting by creating RSI studios where interpreters could work in a booth, as a team, and with the required technical support. This was a great idea and positive results came in in both cases. Up to here, everything was on the right path, with perhaps a few wrinkles to be ironed out, and we will talk about them in a moment, but with some of the biggest issues already addressed.

Unfortunately, sometimes greed, overconfidence, or lack of knowledge can cloud even the most successful vision, and it is happening now with these and other platforms: For all, or some, of the reasons above, those in charge of recruiting talent, or organizing events, are encouraging RSI from home.  The idea of the studio where interpreters would work as a team sitting side by side in a virtual booth at a facility where technical support would be available has moved aside to leave a prominent place to remote simultaneous interpreting from the interpreters home or office.

I have attended conferences and other events where RSI platforms and agencies are actively recruiting interpreters from countries with emerging economies to provide remote simultaneous interpreting services from their homes. These colleagues are told of the professional and economic personal benefits of working big events, often otherwise inaccessible to them because of geography, by setting up a “studio” in their own house. They hear all they need is a highspeed internet connection, a professional quality microphone and headset, a computer, and two good screens. Sometimes they are told to condition a house room to be soundproof, which they are told, would be easy and inexpensive. These colleagues are offered fees well below those charged by interpreters in developed markets.

The above proposal is enticing and it sounds great to many interpreters all over the world. Some think of a little corner in their house that can be turned into their home studio; others believe that they are good at repairing things, or they know a lot about computers, so setting up their hardware would be a piece of cake. All that may be true, but it is like the worm on the fisherman’s hook, it looks good, but it also brings all kinds of hidden dangers to the individual interpreter. Let me explain:

The first thing interpreters considering RSI need to understand, and this also applies to those who only work at the RSI studio, is this is a new kind of interpretation. It is not conference interpreting, even though they both share many things as far as preparation and rendition. RSI interpreting requires interpreters do extra tasks they need not perform when interpreting a conference in a traditional booth. RSI interpreters must use a keyboard to communicate with each other, the tech support team, and sometimes the person directing the event. They read messages on their screens and hear things in their headsets traditional conference interpreters do not: “get closer to the microphone”, “do not move around that much because the microphone captures the noise and transmits it to the audience”, “we will run a sound test during the break”, are some instructions RSI interpreters will hear during an event while they are interpreting. They will also have to answer questions from technical support, the person directing/coordinating the event, and other interpreters from different booths, by typing messages while interpreting. RSI interpreting requires interpreters perform more tasks than those they perform when working a conference in a traditional booth. This is doable; interpreters can practice and accomplish these tasks, but the bottom line is that, compared to traditional conference interpreting, these interpreters are asked to do more work. We all would agree that more work = higher pay.

Contrary to interpreting agencies’ talking points, RSI interpreters should be paid more than their counterparts working in person. Agencies and organizers are getting their savings from avoiding travel expenses and setting up equipment at the venue. Interpreters should get paid according to the work they do.

Another issue of great concern to interpreters, not so much to agencies and event organizers, is the risk of acoustic shock. As many of you know, acoustic shock disorder (ASD) is an involuntary response to a sound perceived as traumatic (usually a sudden, unexpected loud sound heard near the ear), which causes a specific and consistent pattern of neurophysiological and psychological symptoms. These include aural pain/fullness, tinnitus, hyperacusis, muffled hearing, vertigo and other unusual symptoms such as numbness or burning sensations around the ear. Typically, people describe acoustic shock as feeling like they have been stabbed or electrocuted in the ear. If symptoms persist, a range of emotional reactions including post-traumatic stress disorder (PTSD), anxiety, and depression can develop. (http://www.hyperacusis.net/other-factors/acoustic-shock-disorder/)

We are talking about losing our hearing! This is a career-end risk that interpreters are not told when offered a job to deliver RSI from home. The dangers of this happening to any of us should not be taken lightly, but when working from an RSI studio, we can demand the best conditions to prevent an event that causes these incidents, and to minimize the impact of the event if it happens. All interpreters should discuss this risk with their clients, and demand the proper infrastructure and hardware to prevent a tragedy, including appropriate headsets for those colleagues without their own. This situation could happen when interpreting at the RSI studio, it could even happen during a traditional conference interpreting assignment, but the risk will be much smaller because the service would be provided in a controlled environment with the appropriate equipment. When working from home, interpreters have no control over these dangers: power supply fluctuations, solar flares, weather-related factors such as electric storms, satellite trouble, internet or telephone system failure, are all risk factors interpreters are exposed to when working at home. Remember: this can be a career-ending event, or at the least a very expensive medical treatment, coupled with loss of income due to a long period of interpreting inactivity due to poor hearing.   Interpreters need to make sure these issues are discussed with their clients and covered in the professional services contract.

There are many other concerns derived from RSI interpreting at home: Interpreters are professionals and they are expected to do their job: Interpreting, researching the subject of the conference, adapting their delivery to cultural considerations to make communication happen between those who do not share a common language. They are also expected to prevent and solve language-related problems that may come up during their rendition. They are neither equipped, nor expected, to deal with technical difficulties or problems derived from the installation or performance of the interpreting equipment, sound system, or any other non-linguistic or cultural issue.  Interpreters are not mechanics, electricians, sound engineers, telephone repairmen, software engineers, or IT experts. Even those who claim to be “amateur experts” do not have to be so. These services are needed to deliver interpreting services, but they are not provided by the interpreting team.

Because technology is so important in RSI, and because interpreters have limitations, the only way to guarantee (to a high degree) a successful event is by delivering the interpretation from an RSI studio where interpreters wit side by side and work as a team, and technical support is on site.

There are other considerations that are as important as the ones so far expressed in this section, that cannot be satisfied to professional quality when interpreting takes place in a house, office or apartment. Interpreters do not have all needed equipment, and even if they think they do, it will probably be outdated. Technology changes so quickly that it would be practically impossible and unrealistic to expect interpreters to keep up with the latest products, and then acquire them at their own expense, and properly install them to be used at the next home RSI event. At home, interpreters are alone, there is no technical support, other than a guy a the other end of the phone line, trying to explain to a lay person how to troubleshoot, diagnose and repair a technical issue while the event is in progress, and the other interpreter takes over the rendition for an uncertain period, with all its unwanted consequences due to mental fatigue and additional stress, until the problem is corrected or the event has to be cancelled.

When working from home, interpreters do not have a boothmate next to them. There is no support/passive interpreter assisting with research, writing down figures, and so on; in fact, to communicate with each other, they must type a message while interpreting, adding another layer to the very complex task of simultaneous interpreting. There is also the possibility of having technical difficulties that may keep an interpreter from taking over when their turn comes up, leaving the original interpreter on the mike for potentially hours. There are also the mental and biological considerations. Because RSI happens worldwide, one interpreter could be working from her home in Tijuana, Mexico while the other could be in Fukuoka, Japan; a difference of 18 hours. One interpreter could be fresh and energetic while the other could be tired and fatigued because she would be working during the night. This differs from traditional interpreting when we travel to the venue and get used to the time change before the rendition. With RSI from home, one interpreter could be sound asleep and then interpreting a complex scientific conference 30 minutes later. This is bad for the well-rested interpreter counting on the exhausted interpreter; it is unfair to the interpreter who just woke up because she is now working during the night after working all day the day before; and it is bad for the client as the rendition will suffer.

One danger from RSI at home concerns national infrastructure. I see agencies and promoters recruiting interpreters all over the world; I have seen them selling the job to colleagues who work with less common language combinations, a very desirable resource to these agencies, but live in countries where the technology and infrastructure may not be at the level needed for a successful RSI job. Power outages are an everyday event in many countries; this would kill an event, or at least, leave one interpreter working solo because the other one will have no way to continue. Outdated telephone systems, sub-pair internet speed, unreliable infrastructure such as poor satellite coverage or cellular phone towers will also kill the event, or at the least deliver a low-quality rendition for causes with nothing to do with the interpreters’ performance.

Living conditions can be a real problem. A dog barking, a neighbor mowing the lawn, kids playing next door, or ambulance sirens from a nearby hospital could diminish the quality of the service.  Unlike an RSI studio, a “sound-proof” home studio by an interpreter is not a professional studio.

Now let’s talk liability. Does the RSI home interpreter’s professional insurance policy cover RSI from home? Until today, I have seen no policy that covers such service; interpreter professional liability insurance policies do not even cover RSI at the studio. Period. The thing is, until there is clear coverage of this professional service, interpreters can argue that RSI at the studio can be equated to conference interpreting from the booth.  Also, just like at the convention center, interpreting from the RSI studio falls under the agency’s or organizer’s liability, not the interpreters’.

This is a real issue and we need to talk to the insurance companies to make sure there is a policy that covers these new modes of interpreting. The premium will be higher, and we need to be ready for that by factoring in the new cost into what we charge for providing our services.

A lawsuit could put you out of business for good, and losing in court because of a power outage , a poor telephone service, slow internet, or a noisy neighbor, while the agency/organizer who transferred this liability to you by getting you to work from home, stays in business would be an injustice.

This problem does not go away, even when interpreting from a different country, half world away from the event. Some countries’ legislation allows the injured party (client) to sue you regardless of where you are from, where you live, or where you provided the service from. The United States is one of these countries. It is a matter of jurisdiction.

The law allows for long arm jurisdiction, so a court, let’s say in the United States, can admit a lawsuit against individuals or corporations not physically within the United States, as long as there is a connection to the country, such as the client, the venue, the agent/organizer, equipment manufacturer, etc. (Becerra Javier. Dictionary of United States Legal Terminology. English-Spanish. Escuela Libre de Derecho 2008). All that is needed is the commission of a tortious act within the United States or affecting an individual, organization, or corporation from or doing business in the United States (International Shoe Co. v State of Washington. 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95) These are some reasons why the United States can create a trade embargo against foreign nations. In the past, even when the parties had no apparent link to the United States, American courts have taken jurisdiction because of certain nexus to the country. Even if you are at home in South America interpreting a conference in Africa for a European client, if you used Microsoft, Apple, Google, IBM, INTEL, an American telecommunications satellite, etc., a judge could admit a lawsuit against you for professional malpractice or negligence due to a defective internet connection or outdated hardware at your house.

The United States follows a contributory negligence system, so even if the agency/promoter is sued, you could be sued as well for contributing to the problem by such things as providing this service from home without knowing about computers, remote interpreting, sound, the condition of your home electrical outlets, the last time you backed up your system, etcetera. Having professional liability insurance coverage that works in the United States will help, because even if sued, the policy will protect you to your liability limit. These are issues that must be discussed with insurance companies, and I believe that until there is a policy that clearly covers these legal situations, I would close the home office and go back to RSI from the studio. I have talked to several tort, malpractice attorneys and insurance company lawyers and they are all catching up. As of now, insurers’ efforts are focusing on how to deny you coverage under current insurance policies.

I understand there is much to be said and researched, including how long is the arm of the law, but for now, and until we know what we professionally, medically, and legally face, I believe the success and full acceptance of RSI in our corporate, academic, diplomatic, and governmental worlds should be handled with caution. This includes going back to RSI at the studio as it was once welcomed and cheered by so many of us. I for one, as an experienced professional interpreter, and as a lawyer, will limit my RSI practice to the studio with a real partner next to me. I will also continue to educate my clients and colleagues on the dangers of working from home, and will talk to many more lawyers and insurance companies about the lack of coverage. That will give interpreters peace of mind. I hope the prestigious platforms follow and those greedy agencies/organizers understand the enormous risk they are taking by continuing to foster home-based RSI. Please let me know your thoughts on this so dangerous risk many of our colleagues are taking without even thinking about it.

Quality interpreting will be tougher and less profitable.

September 3, 2019 § 4 Comments

Dear colleagues:

Government officials are entrusted with taxpayer’s money and they should be good stewards when allocating said resources. Good governments are charged with guaranteeing equality and quality services to those who elected them, and they must wisely decide where to invest and where to cut expenses. Sometimes well-intentioned authorities get it wrong, and unless they rectify, consequences can be ugly.

There are two instances where the United States federal government has adopted policies, and is considering even more steps, that will negatively affect our profession: One of such actions, already in place, impacts those interpreters practicing before the immigration courts; the other one will make accurate interpreting extremely difficult in the healthcare sector.

Even though we have read and heard many voices protesting these government decisions, and that is very good, they all argue the negative effects from the perspective of the beneficiary of the professional service: the millions of individuals living in the United States who do not speak English, but nobody has argued why these changes must be opposed from the interpreters’ perspective. My following comments result from conversations I had with fellow interpreters, immigration attorneys, and my own experience and observations as an interpreter, and from my days when I saw the immigration court system up close as part of an immigration law firm. This should complement what others have said.

Interpreting immigration proceedings.

The Executive Office for Immigration Review (EOIR) which runs the immigration courts, a branch of the Executive Branch of the federal government, not part of an independent judiciary, and run by officials appointed by the current administration, to lower its operational costs, replaced in-person interpreting services during an individual’s first court appearance with “pre-recorded, subtitled orientation videos, or telephone calls…”

These initial appearance hearings, called “Master Calendar Hearings” are the procedural moment when a person sees the immigration judge for the first time, after receiving a “Notice to Appear” (NTA) in court because of a removal proceeding the U.S. government, through the Department of Homeland Security (DHS) has instituted against him or her. The notice informs the individual of the charges, gives the time and place of the hearing, and it informs immigrants of their right to have an attorney to represent them at no cost to the government (remember, immigration court is Civil Law. Only criminal cases are covered by the constitutional right to have a defense attorney free of charge).

Master Calendar Hearings are very important. During this appearance, a person, technically called the “respondent,” who apparently is not an American citizen, learns of the charges against him, the facts of his case, is informed of his legal rights, and is given the chance to retain an attorney at his own expense or appear without legal representation (pro-se) during the proceedings. The person could request bond or ask for a bond redetermination hearing before the immigration court.

Respondents are told of their rights as a group. In some courts between 80 to 100 people at a time. During the hearing, the judge briefly addresses each individually, asking them their name, date of birth, address, and whether or not they plan to retain an attorney. Judges also ask them if they have questions, if they understand English, and when needed, an interpreter is appointed at no charge. This is very important because respondents need to know that failure to appear to any subsequent hearings will be held without them been there (in absentia) and the result will be a final order of removal and a 10-year bar to any future immigration benefits in the United States. Occasionally, people ask for voluntary departure or concede removability at this hearing.

Before the pre-recorded policy was implemented, judges listened to respondents’ answers to their questions, and conveyed information through an interpreter in close to 90 percent of the cases, this is immigration court where English speakers are the exception. If respondent’s language rarely was spoken in the area, and there were no staff or contract interpreters readily available, judges would use a telephone interpreting service, and for those cases where interpreters were not found, immigration courts would continue the hearing to a future date when an interpreter would be available.

I cannot imagine, and it shows a lack of knowledge on the way immigration courts work, how could a judge ask questions, provide information, and communicate with a non-English speaker. I can even see how a judge can even know that the individual understood the recordings. Some will not understand the spoken language in the video; others cannot read the subtitles in their own language because they may be functionally illiterate. Some may not pay attention to the video. I know how important is to know what to do if an emergency occurs when on an airplane, but I rarely pay attention to the video airlines show teaching me how to buckle my seatbelt. The most logical outcome will be: The judge continues the Master Calendar Hearing until there is an interpreter for the respondent. The consequence of this outcome: a second Master Calendar Hearing, easily avoidable when interpreters are available the first time. Taxpayers’ savings: gone.

Unfortunately, many respondents will be embarrassed to admit they did not understand the video, others may choose a hearing they do not understand instead of sitting in detention for a few weeks waiting a rescheduled hearing with an interpreter; others may concede removability when they had relief because nobody told them so.

Under this new policy, interpreters will encounter the respondent at the hearing on the merits, called “individual hearing”, for the first time. From the interpreter’s perspective, these hearings are similar to a traditional trial, there are legal arguments by the parties, direct and cross-examination of witnesses, references to caselaw, and quotations of official documents on the situation of countries, regions, and other relevant information. When an interpreter is involved from the Master Calendar Hearing, she has time to prepare for the assignment, research country conditions reports, get acquainted with the relief the client is seeking, and develop a glossary of terms relevant to the case and to the respondent’s speech.

Accurate interpreting during individual hearings is difficult because of the wide variety of issues that can be discussed. This is complicated even more due to the cultural differences and level of education of many respondents.  Interpreting during an individual hearing when a pro-se respondent went through a Master Calendar Hearing with a pre-recorded video will be a very difficult task. It is almost impossible to interpret without context, and the Executive Office for Immigration Review expects accurate quality interpreting services under these deplorable circumstances.

In an environment where the federal government wants to slash down all language resources needed in immigration proceedings, therefore compromising the quality of the interpreting services in immigration court, it is very telling that SOSi, the sole agency providing interpreting services in immigration courts nationwide, under a public contract reviewable every year until 2021, has remain silent on this issue. They already showed how willing they were to win that contract a few years ago when their lowest bid ousted long-time provider LionBridge. We all remember how the first thing SOSi did was to reduce interpreter fees from $60 to $35 dollars per hour (they later lost to the interpreters before the National Labor Relations Board NLRB). We must not forget SOSi is a well-established, powerful contractor with the U.S. Department of Defense (DOD) with a vested interest and a priority to keep its client: The United States federal government happy.

Dear colleagues, all immigration interpreters: staff or contractors, will face a terrible environment where they must do more, much more, with a high probability of a less than perfect rendition, because of the erroneous, and in the long-run more expensive policy enacted by the EOIR. Independent contractors will also have a less profitable immigration practice because all Master Calendar Hearings will be gone. How do you like this: tougher work, less income, providing interpreting services for an agency focused on keeping a federal contract, that cares nothing about interpreters or quality service, all to comply with an absurd government policy that brings nothing favorable to the interpreter to the table?

Healthcare interpreting.

In compliance with Title VI of the Civil Rights Act, which prohibits discrimination based on national origin, including language proficiency, and President Bill Clinton’s Executive Order 13166 (2000) during President Barack Obama’s administration the U.S. Congress passed the Patient Protection and Affordable Care Act, popularly known as “Obamacare” in 2010.  Section 1557 of the Act prohibits discrimination in federally-funded or administered healthcare programs on basis of national origin, including language proficiency.

Once the law came to full force, healthcare providers had to provide “qualified” interpreters to those who are not English proficient. Since then, we have come a long way; there are now healthcare interpreter certification programs in several languages, criteria to resort to other qualified individuals in those languages lacking certification programs, and explicitly banning interpreting services by children and relatives of the patient. Interpreting services for languages of lesser diffusion, and for remote areas of the country where in-person certified interpreters were not physically available, a video remote interpreting (VRI) option was developed. I want to make it clear: I dislike VRI for many reasons, but I understand that it was better than the alternative: having a child doing the rendition or no interpreter.

On May of this year, the Office of Civil Rights (OCR) of the United States Health and Human Services Department (HHS) issued a proposed change to Section 1557 which affects many segments of the population, including the elimination of written translated notices informing non-English speakers of their right to have an interpreter, and the option to get interpreting services by video in regions where no interpreters were physically available. Citing savings of $3.2 billion dollars over a 5-year period, the 204-page amendment proposes telephone interpreting instead of the more expensive video remote interpreting.

The patient-physician relationship is very private, often it happens during difficult times, and it could include communicating the worse possible news. Medicine is an imperfect science and it depends on accurate diagnosis, precise instruction, and strict compliance by the patient. Unless a patient is English proficient, none are possible without an interpreter.

VRI is a horrible solution, interpreters who provide this service are at the mercy of the weather, the speed of the internet service, the reliability of the electric company, and the quality of sound, among other things that have nothing to do with interpreting. Telephonic interpreting, maybe good for a 9-11 emergency call, or to make an appointment to the hairdresser, when used for healthcare interpreting is borderline criminal.

Those who think interpreting is all about hearing what a person says and translating it into a different language show their ignorance. Interpreting is much more than that. Communication includes facial expressions, tone of voice, body language, and many other factors that need to be picked by the interpreter to do a good job. Interpreting for a medical examination, laboratory work, therapy session, need this visual component more than many other human interactions.

How can an interpreter be satisfied and confident of a telephonic interpretation where the doctor asks the patient: “Is the pain sharper here… or here?”  How can a physician diagnose correctly if the patient reveals his injury by pointing to a body part and nothing else?

Many of the non-English proficient patients come from cultures when it is difficult to take about the human body, even to mention human parts by their name. They solve this uncomfortable situation by pointing to their intimate body parts instead. Hated VRI at least allows the distance interpreter to see what the patient is doing and render an accurate interpretation. Same is true for those patients, many farmers and construction workers from Spanish-speaking countries, wrongly name a body part, or refer to their own body by the name generally applied to animal parts. Hearing “my foot hurts” when they hold their thigh, or “my gizzard is swollen” can be accurately interpreted when the interpreter sees on the screen how the patient holds his thigh or points at his stomach. With telephonic interpreting this would take a lot of time and many questions to the patient. Sometimes it is impossible.

Medical insurance paperwork without a translated notice informing non-English speakers they can request an interpreter for their medical appointment, and long, often uncomfortable telephonically interpreted doctor visits will cause many discouraged patients, who are not proficient in English, staying home, skipping medical appointments, and waiting until it is too late, and more expensive, to provide medical treatments. To say that healthcare services, arguably the most profitable activity in the United States, needs to cut expenses by amending Section 1557 is difficult to buy. This is the business that charges you $75 for the plastic pitcher of water you used during your hospital stay.

To the interpreter, it will mean a more difficult task, a professional practice that goes beyond interpreting and into the world of having to divine what a patient said. More difficult work, same pay, and a diminished rentability. When patients stop going to the doctor because of telephonic interpreting, when people stay away from hospitals because nobody ever told them they could have an interpreter during the medical examination, the need for interpreters will plummet. If implemented, on top of the thousands of deaths it will cause, HHS decision to eliminate right to an interpreter translated written notices, and to replace VRI with a telephone line will be remembered as the decision that killed healthcare interpreting as a profitable practice.

If you are a practicing immigration court or healthcare interpreter, and you want to continue in your filed, working in a fulfilling profession that makes you a nice profit, join the activists working on behalf of immigrants, patients, immigration attorneys associations, the immigration judges union, and healthcare rights activists, and share with them your perspective, make them understand that the quality of your service will suffer because of reasons with nothing to do with the way you practice your craft; explain to them that less profitability will be the easiest way to show the door to the best interpreters practicing immigration and healthcare, leaving only (with a few exceptions) those of a lesser quality and professionalism. Share stories like the ones I have included here. I now ask you to tell us what are you doing as a contingency strategy if profitability leaves immigration court and healthcare interpreting.

Things to look for in an interpreting contract.

December 8, 2015 § 4 Comments

Dear Colleagues:

There has been a lot of discussion about interpreting services contracts in the past weeks.  The SOSi immigration court interpreter contract was a trending topic all over the social media.  Many colleagues debated, attacked, and defended parts of the contract like I never saw before.  This circumstance, together with other events in the professional world that involve contract negotiation (and the contents of the agreement itself) such as all federal contracts that were up for renewal at the beginning of the new U.S. federal government’s fiscal year, several irregularities with some state government contracts that appeared prior to their new fiscal year in August, and just the wording of quite a few contracts drafted by interpreting services agencies, large and small, made me think long and hard about the importance of negotiating an agreement and reviewing the letter of the proposed contract before committing myself to anything by the power of my signature.

Signing a contract is a very important act that can impact our professional career and reputation for a long time. It is not, as some colleagues may think now and then, a simple ceremonial thing that needs to be done in order to get the big assignment or the prestigious event. A contract is an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. (Black’s Law Dictionary). As Samuel Williston puts it, “A contract is a promise, or a set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty…” (A treatise on the Law of Contracts §1, at 1-2. Walter H.E. Jaeger ed., 3d ed. 1957)

I suggest that we should all reflect on the meaning and magnitude of the concept above, and apply ourselves to the negotiating of the terms and conditions that will govern our professional services with a client, and that we review in detail the final document that the client (whether it is a direct client or an agency) tenders for our signature before we undertake any obligations.  In fact, I recommend that before signing any agreement, you give your attorney a chance to review the terms of the contract to see if there are any “unwanted” harmful terms. Even if you do not have an attorney who regularly works with you, I encourage you to get one. It is that important, and in most countries it is tax-deductible as part of the cost of doing business.  Just think for a moment: the other party had a lawyer draft the contract, that attorney is being paid by the party who has an interest in the delivery of the professional service that is different from yours, and many times it is the opposite.  Although ethical and professional, the job of the counterpart’s attorney is to protect his client’s interests, not yours.  Just like you would never enter a car race on foot while the others are driving a car, you should never sign a contract unless, and until, you are familiar with all of its contents because all of your questions have been answered to your satisfaction, and all your concerns have been put to rest.  Remember: You are an interpreter and you provide a professional service.

There are different types of contract that you will encounter during your professional life; government agencies will always have their standard contract, some large agencies, corporations and organizations will have their own contracts as well.  Smaller agencies and direct clients will likely accept your version of a contract or will adapt their own document to your demands and suggestions. Finally, some of your regular clients may not use written contracts. They will negotiate assignments with you more informally. That is fine, but remember, the document is not the contract; the contract is the meeting of the minds, the agreement of the parties. In other words, even in these cases you have a contract.

I always review all contract conditions, even when dealing with the government, and when I dislike a certain term, or I consider necessary to add some conditions, I propose the changes. You will be surprised to learn that more often than not, the counterpart agrees to the amendments to their standard contract. By the same token, I am also flexible and open minded about the counterpart’s proposals and suggestions. I always consider them and give them a lot of thought. On many occasions I agree to the changes, provided they do not leave me unprotected and the potential risk is something I can live with.  Finally, in the case of a regular client who never signs any documents with me, I always put all essential terms of the verbal contract in writing and send them to the client by email as a memorandum of understanding, stating very clearly that by receiving the email and not taking any action within the first 24 hours, the client is consenting to the terms and conditions included on the email. This way essentials such as type of event, dates and location, scope of services and fee are always included, as well as reimbursement of expenses, travel costs and fees, late payment penalties, cancellation policy, and standard working conditions according to the type of assignment (equipment, booths, team interpreting, materials and glossaries, etc.)

As we see above, contracts can come on different presentations and they originate for different reasons depending on the client who drafted the contract; but, regardless of the type of contract, there are always certain things we should look for in an interpreter contract. I will share with all of you some of those items I look for in all contracts, and I hope this helps you as much as it helps me; however, I would like to make it very clear that my suggestion is that you always go to an attorney before signing any contract. The following are just suggestions that have worked for me, but in no way they are intended to constitute legal advice of any kind. All situations are different and I do not know your particular situation, so please understand that this is not legal advice. Only your lawyer can give you that kind of professional help.

These are the things I look for in a professional contract:

First. The scope of the service. I always look for the specifics: What the client is actually retaining me for. It is very important because some clients have the idea that once you are hired, you are theirs during the assignment to do anything that they consider part of the service. They are wrong. You agreed to perform a certain service and you are only getting paid for that service. Nothing else. Be careful about services description that may “include” translation services, being responsible for giving out and collecting interpreting equipment, other peripheral interpreting services not previously discussed such as dinners, press conferences, book signings, etc.

Second. I always pay attention to the wording because it tells me a lot about the client. I look for “telling” words such as interpretation industry (instead of profession) and in the case of an agency, how they refer to their end client: If they refer to them in the contract as “the customer” instead of “the client”, we will have a very difficult relationship because it is clear that my profession is an industrial commercial activity to them. I always discuss these issues when present in the contract, educate the client about the profession, and usually they agree to change the contract’s terminology (at least for my assignments if not for the rest of my colleagues)

Third. The grounds for termination of the contract. This is a crucial item because an early termination could impact your income for at least a few days or weeks. The reasons to terminate a contract early have to be fair, and they should include both parties. I have found many contracts where only the client can do an early termination. That is wrong, unfair, and highly suspicious. The grounds should apply to both parties, and in long-term contracts, they should include the lack of payment or late payment of your fee as a cause for early termination.

Fourth.  The famous confidentiality clause that although redundant since we are professionals and as such are legally and ethically bound to this duty of confidentiality, it should be included for the peace of mind of the client and his attorneys; however, the same provision should always include that the confidentiality will be observed with the exceptions of law. Yes, the law allows you to break this duty of confidentiality, even in the client-attorney privilege case, when there are certain facts that justify the lifting of this duty. For example, if you have to file a lawsuit against your client for lack of payment, or when your client sues you and you need to defend yourself. In those cases (and others) the law allows you to break the duty, limited to what may be necessary, to defend yourself or to exercise legal action.

Fifth. I look for cases where the client contractually limits his liability, and when I find it I do not like it and demand that it be changed. Although many legislations permit that an individual’s liability be reduced or limited by agreement of the parties, it is ridiculous for the other party to suggest, and for you to agree, to be exposed to all kinds of damages in case of a lawsuit, while the agency and the end client just sit and observe how you lose your business (in one of the best possible outcomes) or all of your assets and life-long savings (as a very good possibility). This is a no-no. Everybody should have the same exposure and respond for the damages caused according to their contribution to the loss. This is a very good reason why the parties should always request a copy of the other parties’ liability insurance certificate.

Sixth. There are some provisions that raise many red flags as they denote a clear intent to tilt the balance in favor of one of the parties (and that party is not usually you). Any provision that makes it illegal for the interpreter to talk to the media about the terms and conditions of the contract, unless we are dealing with information protected by the duty of confidentiality or the client-attorney privilege, and all clauses that force you to “consent” to resolve any controversies through arbitration instead of going to court are a huge warning sign.  You see, businesses prefer arbitration because it is less expensive, but mainly, because they get to “pick” the arbitrator. Unless you know several arbitrators that you trust, which is unlikely, they will always get to suggest the arbitrator. This individual will know them, it is very likely that he has presided over other arbitrations with the same party, and he will probably, be inclined to keep the client (your counterpart) happy for business reasons into the future.  Of course this last part cannot be demonstrated and I have no basis to claim that this is what happens during arbitration. The question is: Are you willing to take the chance? I personally would not do it. I would seek justice in the court system. Yes, it will take longer, but impartiality is more common in the courtroom, and if you win, the losing party may have to pay your attorney’s fees.

Seventh.  All terms and conditions must be in writing and they must be part of the written document. Even those terms and conditions contained in an appendix to the main contract should be referenced to and identified within the body of the contract by a number or a letter. Make sure that all attachments are signed by all parties, and dated with the same date as the main contract.  Most legislations abide by the parol evidence rule which clearly states that all agreements previous or contemporary to the signing of the contract must be in writing and appear as part of the physical agreement. Those that do not follow this rule will not be considered as part of the contract.  Be very careful with all those promises and concessions on the side.  They are not part of the contract unless they are in writing and in the document itself.

Eight.  Travel expenses must be included in the contract. The document should clearly state what expenses are reimbursable: airfare, hotel, ground transportation, Per Diem, photocopies, etc. It should also spell the fees payable to the interpreter on traveling days.  Remember, you provide a personal professional service. You cannot provide your services to two clients at the same time, so on the days that you travel to and from the assignment location, you are not working for any client. Unless you like to lose money, you should clearly negotiate and include in the contract your travel fee. There is a cost of doing business, but you should never lose money for accepting an assignment. Maybe one half of your regular fee should be a fair compensation for your travel days. Make sure that reimbursement of expenses for travel days are for total expenses. You can charge a lower fee, but you cannot fly, sleep or eat for less money just because it is a travel day.

Ninth.   The cancellation policy will always be in the contract. I would never sign an agreement that does not deal with this issue.  This policy needs to be negotiated taking into account the time between the cancellation and the cancelled event.  The fact that your client just found out of a cancellation that was decided two weeks ago is no excuse to lower your cancellation fee. It is your client’s obligation and duty of due diligence to be on top of everything the end client is considering, pondering, thinking, and doing.  A last-minute cancellation should require a full fee and reimbursement of all monies disbursed to that point.  Remember, it is not your fault that the client lost the event. That is his risk, not yours.

Tenth.  A good contract should cover payments in detail: amounts, timetables, and penalties in case of late payment.  Just as you had to show up to interpret on the set date, and not 30 days later, the client has the obligation to pay you on the day agreed to, and if he does not, then you must be compensated by virtue of a penalty clause that provides for compensation in case of any delays.  This is extremely important with smaller agencies who sometimes come to the interpreter crying poverty and asking for more time to pay you because their client has not paid them yet.  Although some of you may be tempted to give the small business owner a break, I am not. Do not lose sight of reality: This individual is your client. He is not your partner. Only partners share the risks of doing business. He is not sharing his pay with you. You should not share in the risk. He pays you or else… Where he gets the money from is not your problem.  You should also look for unacceptable provisions, usually inserted by larger agencies, about penalizing you by retaining part of your (already earned) fee.  They often include deductions based on what they consider your “performance” and deduct part of the money you already made. This is unacceptable and illegal.  Nobody should agree to give up part of his fee based on the assessment of others, much less when there are no safeguards in the contract such as notice of the intent to deduct part of the fee, and a mechanism to have a hearing before an impartial authority. How about letting a real judge deal with this issue? Agencies should never get that power from the contract- signing interpreter.

There are many more points to be included and reviewed by the parties, but I believe that at least these basic elements put me on a leveled field with the client as equal parties to a contract. I now ask you to please share any pointers or comments you may have on this very important professional issue.

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