Quality interpreting will be tougher and less profitable.

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.

Interpreters’ rights under siege in California and other places.

Dear Colleagues:

Quite a few colleagues from California and other states, even foreign countries, have contacted me to complain about certain practices, and even legislation, that directly deprives them from their right to make a living by practicing as freelance court interpreters.

In California, the full implementation of the so-called “Language Access Plan” (LAP) goes into effect full blast by 2020. This is a strategy adopted by the State to meet the requirements of Title VI of the Civil Rights Act and keep California as beneficiary of federal funds attached to this legislation (http://www.courts.ca.gov/documents/LAP-Fact-Sheet.pdf).

The State had already partially complied with the federal mandate when it was sued by a non-for-profit organization, now a member of the State’s Advisory Committee on this Plan. As a result, California decided to provide, free, interpreting services to anyone who requests an interpreter in Civil matters. This is a universal rule, not limited by income-based eligibility requirements, and it applies to both: low income litigants with no ability to pay for an interpreter, who benefit greatly from this service, and Fortune 500 corporations that appear in court represented by high-price attorneys and rely on the expert testimony of expensive witnesses.

This decision by the State has nothing to do with the preposterous practice, followed by many States, to dodge Title VI of the Civil Rights Act’s mandate by creating de dubious “Justice System Interpreters” program (it goes by different names in various States) and save money, instead of fostering the development of real certified court interpreters and paying them a professional fee for their expert services. This mandatory policy California will fully implement by 2020 (unless the rule of law prevails and it is amended) impacts professional certified and registered (depending on the language combination) court interpreters.

California adopted a sweeping, populist demagogic policy that mandates free interpreting services for anybody in any court proceeding. At first, this looks like a fair and wise decision by a progressive State that wants to level the legal field for all its citizens, but if you just peel off the top layer, you discover the policy is wrong, expensive, incoherent, and illegal.

It is wrong because it treats all litigants the same way in non-criminal matters, going beyond Federal and State constitutional protections limited to criminal proceedings, and creating an even greater uneven field by rightly providing free interpreters to those civil litigants who cannot afford a private interpreter, and wrongly gifting the same option to those individuals and corporations with the means to pay for these services. A well-intentioned solution resulted in a policy that makes no sense.

It is expensive because the interpreters providing this service will be paid by the State of California through a judicial fund, wasting valuable taxpayer money in interpreter fees that should be paid by those civil matters’ litigants who can afford them. Court interpreter programs need more financial resources in California and elsewhere, and a State willing to invest money in language access programs should allocate those funds to professional development and better pay for those freelance interpreters serving criminal courts and interpreting civil matters for indigent litigants, not big business and wealthy individuals.

It is incoherent because Congress’ intent, in advancing these constitutional protections, was to give all individuals, regardless of their financial situation, the same access to the administration of justice even where they speak a language other than English. The legislator never envisioned a situation where taxpayers’ money would cover expenses derived of civil litigation, where life and liberty are not at stake, to favor those who do not need financial assistance. Under a rational basis criterion, taxpayers’ interest to judiciously spend their money substantially outweighs the needs of Fortune 500 businesses and millionaires to get an interpreter free of charge in civil matters.

It is illegal, because implementing this policy mandates all court administrators, managing interpreters, chief judges, and others in charge of court interpreting services at the courthouse level, to provide free interpreters in all civil cases, and, as it has been (almost) unanimously interpreted by these government agents, this means that freelance court interpreters should be banned and excluded from all civil court proceedings when their services are not paid by the judiciary, even when litigants prefer the services of independent court interpreters and they will pay for their services. California legislation establishes the requirements to practice court interpreting in the State as a certified or registered court interpreter (depending on the language combination). Perhaps these certification and registration requirements are meant to qualify as a court interpreter contracted by the court, but for the sake of argument, and because having certified and registered interpreters serve courts and litigants better, let’s assume however, requirements are necessary to practice as a court interpreter. Conclusion: As long interpreters meet the requirements, and until these credentials are suspended or revoked, they should be admitted to practice in any proceeding when the parties retain their services.

The other professional in a civil proceeding is the attorney. All parties may retain the attorney of their choice to represent them in any court matters; those who cannot pay for legal representation can seek assistance by non-for-profit organizations that provide attorneys for free or on a sliding scale. Attorneys are not excluded from a proceeding when paid by one party. I understand that, if you only see this situation from the litigants’ perspective, the issue is not exactly the same. Indigent litigants can appear in court pro-se if they cannot afford a lawyer, but non-English speakers cannot represent themselves, and their access to the administration of justice must be guaranteed by providing a court interpreter; however, in civil cases, said right should be tempered by the individuals ability to pay for an interpreter, so indigent litigants enjoy an even field with English speakers, taxpayers money is not wasted on paying for the services of an interpreter they can easily afford on their own, and freelance civil court interpreters can exercise their right to practice in the courts of California when their client will pay for their services.

Please remember that I am referring to those cases where litigants can pick their interpreters, just as wealthy people choose their doctors, lawyers, and accountants. I am not including in this category services provided by freelance court interpreters to indigent plaintiffs and defendants who cannot pay such fees but retain the interpreting services because they ignore a program would furnish an interpreter at no cost if they financially qualify for it.

The cases that concern my colleagues, and worry me as a member of the profession, are those controversies so complex, they need expert attorneys, witnesses and interpreters. These require of months of preparation, where interpreters are a crucial part of the legal team and often travel overseas with lawyers and investigators for interviews, inspections, and depositions. I am also talking about civil trials dealing with topics so sophisticated that attorneys, sometimes by agreement of the parties, hire freelance interpreters, not to be part of the plaintiff’s or defense’s team, but to interpret all court proceedings for the judge and jury. These interpreters are selected because of their experience on a particular subject, or because of their known skill and diligence, needed to prepare for a difficult, long trial, where branding, reputation, and a lot of money are at stake.

Some of our colleagues have told me that interpreters’ professional associations, interpreters’ labor unions (where they exist) and even staff interpreters oppose an amendment that will allow independent contractor civil court interpreters back in the courtroom.

This should not be the case. Staff interpreters should be glad to have one less issue to worry about. Civil Law and proceedings are very complex. Inexperienced civil court interpreters, even when they may have many years of criminal court practice, which encompasses most of those working as independent contractors with the courts, are prone to make mistakes when dealing with unfamiliar subjects and little time to prepare for a case. Professional associations, labor unions, and interpreters’ guilds are about advancing and protecting the profession. Excluding civil court interpreters from State courtrooms benefits no one. Even when the excluded professional is a non-unionized independent contractor, or these colleagues are not members of the professional association or guild, any policy that irrationally limits the livelihood of a group of interpreters eligible to perform a service hurts the profession and damages all, unionized, independent, and staffers. All agencies devoted to the advancement and protection of the profession must understand that independents, staffers, or members of a different association are not the enemy, we all play for the same team. We must channel our energy and resources to change legislation, regulations, and government policy like this one. We must remember: Those driving professional fees down, lowering professional standards, and destroying decent working conditions are the greedy agencies, not our fellow interpreters. In places like California where a professional association specifically deals with the interests of independent contractor court interpreters, such as AIJIC (http://www.aijic.org/), ask them to lead the campaign and support them in these efforts. States where there is not a professional association of independent or in general judiciary interpreters, local and State-wide professional associations must protect the profession by assuming leadership in this and other matters that affect professional interpreters in their State or region.

I have heard that government officials are unwilling to rectify because they do not want to lose face; that they worry about not getting federal funds if found noncompliant with Title VI of the Civil Rights Act; that they problem is stubbornness or ignorance of the interpreter profession or disregard for what interpreters do in a court proceeding.

Government officials must put constituents first and sometimes this means that a law, regulations, or public policy need to be amended. Can you imagine our country without the Twenty-first Constitutional Amendment repealing prohibition because legislators wanted to save face? Federal authorities over at the Justice Department would never retain federal funds from a State unless there was a violation of the Civil Rights Act. As long as there is equal access to the administration of justice, and the access is guaranteed to those who speak a language other than English by providing a free interpreter to those who cannot afford to hire one on their own.

The situation may be more difficult when dealing with stubborn or ignorant public servants. Here, after reasoning and dialogue takes you nowhere, and there is no other option, interpreters’ professional associations, such as AIJIC, supported by other national and local associations, including interpreter labor unions and guilds,  should stop wasting their time with government officials who do not want to listen, and take their concerns to the interested parties: Attorney State Bars, local Bars, ethnic and gender-based Bars, Law Schools, Judicial Colleges and Associations, carefully targeted judges and legislators (not bureaucratic committees ruled by the same rigid individuals they could not convince before), and social media. Make the case that quality suffers when unprepared interpreters work in a case; clarify that certified and registered court interpreters cannot be denied access to the place where they find their livelihood. Help them see this situation your way; they have an interest on this policy, but it does not impact the way they make a living if left unchanged.

Civil court interpreting is a niche. Most certified and registered court interpreters are not familiar with civil law and procedure; court interpreter certification exams cover criminal law and procedure, not civil law. Since the implementation of Title VI of the Civil Rights Act nationwide during the Obama years, I have talked to many court interpreters scheduled by the courts to interpret civil matters who feel apprehensive and not-prepared. Even though the purpose of this post, and all my posts really, is to protect our profession and show all issues from the often-ignored interpreter’s perspective, often, the quality of the rendition and the administration of justice, would greatly improve if freelance civil court interpreters are welcomed back to the courtrooms in California and elsewhere. I now invite you share with the rest of us the situation of these civil court interpreters in your State, given the implementation of Title VI of the Civil Rights Act. I would also like to hear from those colleagues in other countries who may be facing a similar situation. Finally, please share your ideas to right this wrong.

A despicable practice in healthcare interpreting.

Dear Colleagues:

For several months I have received phone calls and emails from some of our healthcare interpreter colleagues in the United States complaining about the same situation: Unscrupulous interpreting agencies asking them to work for laughable fees. I know this is not breaking news to you; we all run from time to time into these glorious representatives of the “industry”.  What makes this situation different, and motivated me to write this post, are the shameless tactics used by these agencies’ recruiters. They have decided that giving the interpreter a guilt trip will soften us up enough to work for a miserable fee that will not even pay for gas and parking, or for the babysitter.

Oftentimes when interpreters provide their fee schedule for healthcare interpreting services, these programmers, recruiters, project managers, or whatever may be their official title in that particular agency, throw the ball right back in the interpreter’s court, not to negotiate a professional fee that is fair considering the complexity of the service requested, but for the interpreter to feel awful about turning down an assignment. The argument goes like this: “…but the patient does not speak English and he is really sick… we cannot afford the fee you requested; his condition will get worse unless you help him… the patient really needs you…”  Another version they use brings up the issue of all patients’ right to an interpreter derived from Title VI of the Civil Rights Act.  In that case, the agency representative would add something like: “…but you know these people must have an interpreter if they don’t speak English, and you are the only one in town. We all need to comply with the law. It is your duty as a healthcare interpreter. You cannot use the fee as an excuse…”  To make a long story short, these agencies are passing the ball to the interpreter through guilt trips and fear.

The good thing, dear colleagues, is that interpreters are not obligated to provide professional services under Title VI of the Civil Rights Act.  The fact that there may not be an interpreter to assist the patient may be something awful, but it is not your problem. Let me explain:

Title VI of the Civil Rights Act of 1964, 42 USC Section 200d et seq. prohibits discrimination on the basis of race, color, or national origin (including language, according to President Clinton’s Executive Order No. 13166, Aug. 11, 2000, 65 F.R. 50121) in any program or activity that receives federal funds or other form of federal financial assistance. The term “program or activity” and the term “program” mean all of the operations of a department, agency, special purpose district, or other instrumentality of a State or of a local government; or the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government. It also includes colleges, universities, or a public system of higher education; and a corporation, partnership, or other private organization, or an entire sole proprietorship if assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole, or if it is principally engaged in the business of providing health care, or social services.

Therefore, it is the hospital who has the obligation to provide the interpreter. Not you. In fact it is not the interpreting agency’s legal obligation either. Federal funds and other types of assistance are very important to hospitals and universities for research and other purposes. It is extremely unlikely that one of these institutions would risk losing those resources just because they are unwilling to pay the healthcare interpreter’s professional fee.

If the interpreter is contacted by an agency, it means that said company has a contractual relationship with the hospital or medical institution to provide interpreters in order to comply with the mandate of Title VI. The agency is getting paid by the hospital, but they now want to profit a little more at the expense of the interpreter. When an agency has this plan of action to be more profitable, they direct their agents to generate the highest profit possible. This is when they resort to despicable practices like the ones described above.

It is important that we as interpreters understand the law, and recognize these horrible practices. It is also essential that we take action in two different ways: (1) Always turn down these agencies, and (2) Let the hospital know that their contractor agency is jeopardizing the hospital’s Title VI compliance by scaring away the professional interpreters because of low interpreting fees and disgusting practices such as these guilt trips. I am sure that hospital administrators will put an end to this “activities” very quickly.

I now invite you to share with the rest of us any experiences like the ones above that you, or another colleague had with an agency, and what action you took to stop this from happening again.

Do some state courts treat foreigners as second-class litigants?

Dear Colleagues:

For years, and especially during the past few months, there has been a lot of talk about the communities of foreign-born individuals who are physically present in the United States.  All aspects of their lives have been debated and scrutinized: from their immigration status to their religion, from their ethnic origin, to the language they speak at home. Many articles have been written, and many discussions have been held about their right to stay in the country, the impact they have on the economy, and the actions of the federal government regarding their admission to the United States and the exclusion proceedings instituted against them. The policy the federal government has adopted towards foreign-born individuals in the United States has been rightfully questioned, criticized and denounced.

As interpreters, we deal with foreign-born people on a daily basis. We see what happens at the immigration courts (EOIR), the United States Immigration and Citizen Services’ (USCIS) interviews, Equal Employment Opportunity Commission (EEOC) hearings, and the federal judicial system.  The news are not always good, but at least they are on the spotlight.  Scandals such as SOSi’s abhorrent practices towards immigration court interpreters, the White House’s six-country travel ban, and the talk about the wall between Mexico and the U.S. are forcing the issue, and eventually things will have to change.

Unfortunately, foreign-born individuals physically present in the United States as immigrants, non-immigrants, and undocumented, face another terrible injustice that is turning into a reality, and eventually it could become an everyday threat: I am referring to a practice followed by state courts in many places that is gaining popularity and acceptance by the establishment, sometimes due to ignorance or indifference, and many times because of incompetence and greed.

This modern form of potential discrimination by state-level Administrative Offices of the Courts against people whose first language is not English has to do with access to justice: It is evident to me that state governments could be systematically discriminating against people who lack fluency, or do not speak English, by denying them the services of certified court interpreters in languages with a certification program, just because state government officials want to save money.

It is undeniable that those states where the language access program is not managed by a professional interpreter are at a tremendous disadvantage because there is a person with neither knowledge nor interpreting background at the helm; but the problem is even worse. Some states where the head of the program is an interpreter, and many state-level courthouses with full and part-time staff interpreters are just passively allowing for this to happen without moving a finger for fear to lose their jobs.

The potentially discriminatory practice goes like this:

During the Obama administration, state-level courts were made aware of the fact that the federal government was going finally to enforce, after almost forty years, Title VI of the Civil Rights Act which allows the withholding of federal funds dedicated to the states when the latter do not provide universal access to all the services offered, even if some accommodations need to be made in order to avoid discrimination based on many categories, among them not being able to speak, or fluently speak English. This included all state-level courts.

Before this development many states were running court interpreter certification programs. California had its own program, and in July 1995 Minnesota, New Jersey, Oregon and Washington State founded a consortium. Other states joined the consortium, and many states began to offer the services of certified court interpreters for criminal cases. A handful of states even provided certified court interpreters for certain litigants in civil cases.  Unfortunately, lack of vision by the Administrative Offices of State Courts and by State Legislatures made the profession’s growth difficult because they refused to pay certified court interpreters a professional fee commensurate to the difficult, and sometimes dangerous, services provided.

This reality, coupled with judges’ ignorance that permitted non-certified court interpreters to appear in court, even though the needed language pair has a certification program, and certified interpreters were available, created an exodus of many of the best interpreters who migrated to more profitable interpreting fields, and made the profession less than attractive to new generations.

When the notice of enforcement of Title VI of the Civil Rights Act arrived, the states were faced with the possibility of losing huge amounts of money from the federal government. They knew that to save “their” money, they would need to provide access to justice to all individuals who did not speak English.

They finally realized what they had done (although they did not recognized it, or refused to acknowledge their fault). There were not enough interpreters to fulfill the federal mandate, and they did not want to lose their subsidies!

The best thoughtful solution to this problem would have been to boost the popularity of court interpreting as a profession by actively promoting the career and by making it more appealing. Responsible States would have developed a plan to encourage teaching of court interpreting at universities, colleges and community colleges. They needed to launch a campaign among high school students informing them of the potential opportunities as certified court interpreters. They needed to increase the times they offered their certification examinations, and they needed to pay an attractive professional fee, with cost of living adjustments, to all certified court interpreters. They needed to do this by lobbying State Legislatures for more funds, and if unsuccessful, by cutting or reducing other non-essential services and devoting those resources to the certified interpreter program. It was a matter of priorities and doing the right thing.

This did not happen. Instead of doing these things, state officials got together to see how they could keep the federal money coming their way. This is how the states came up with the Language Access Services Section (LASS), the Language Access Advisory Committee (LAAC) and the Council of Language Access Coordinators (CLAC). A system designed to protect their federal funds while giving the appearance of granting language access to all foreign-language speakers in State-court systems.

As a result of these developments, states opted for the easiest and cheapest solution, which basically follows three major principles: (1) Use video remote interpreting (VRI) as much as possible to reduce costs of an in-person interpreting service, and pay less to the interpreter as they would get paid by the minute, or in more “generous” states by the hour at a much reduced fee; (2) Use all those who demonstrated that they are not fit to become certified court interpreters, by creating a “new classification” of “credentialed interpreters” (Nevada) or “Justice System interpreters” (New Mexico) so that individuals who failed the court interpreter certification exam can work interpreting court proceedings; and (3) Use certified court interpreters as little as possible, while giving the appearance that these questionable new classifications had to be retained because no certified court interpreter was “reasonably available” to do the job.

This is happening in many states, and I ask you to please include in the comment section a report of what is going on in your own states. Because what is currently taking place in Nevada and New Mexico has come to my attention, I will share the main points with all of you.

The Nevada Administrative Office of the Courts is considering implementing this new category of paraprofessionals by rewarding those who fail the court interpreter certification test with access to work in court as interpreters. These decisions are being considered by the Nevada Court Interpreter Advisory Committee which is integrated by judges and administrators, and no independent certified court interpreter is part of the committee. Interpreters do not get notice of the Committee meetings, and so far, the person in charge of the interpreter program at the Nevada Administrative Office of the Courts apparently has shown no desire to inform interpreters ahead of time so they can at least attend the meetings.

Nevada courts use the services of way cheaper paraprofessional non-certified court interpreters even when certified ones are available, and currently, this state’s certified court interpreters are among the lowest paid interpreters in the country, despite the fact that judges and administrators make six figure salaries in Nevada.  It is clear that there is a problem with the state judiciary’s priorities.

The New Mexico Administrative Office of the Courts is already rewarding those who fail the court interpreter exam by using the services of these much cheaper paraprofessional “justice System interpreters” (JSI) even when certified court interpreters are available.  Under the excuse of unsuccessfully attempting to find a certified court interpreter, they are retaining the services of these individuals even when certified court interpreters were ready and willing to do the job. The State is also resorting to the way cheaper video remote interpreting (VRI) even when interpreters appear from other states and are not familiar with New Mexico law and procedure. It is very concerning that they are using this system and these interpreters for hearings of such importance as sentencing hearings.

The New Mexico Language Access Advisory Committee does include a disproportionate minority of independent interpreters; however, it is said that its meetings are sometimes hostile towards independent interpreters who raise objections to the dismantling of the certified court interpreter program, and that some interpreters have been refused work in the state court system even after all possible grounds for denial have been dissipated and proved unfounded.

Despite the fact that judges and the Director of the Administrative Office of the Courts make six figure salaries, New Mexico certified court interpreters have not seen a fee adjustment in a number of years, their expense reimbursements have been significantly reduced, and instead of having a professional relationship with a judiciary that makes an effort to prioritize access to justice and find funds to do it, they have been warned by the AOC that there is no money. They face an administration with an attitude that could be interpreted as contempt towards foreign language litigants, moved by a philosophy at the top that apparently believes that the AOC only has a legal obligation to provide “an interpreter”, not a certified court interpreter. To me, this is the pull the rabbit out of the hat principle where you create an “interpreter” category in order to get federal money. It is not about having a warm body next to the non-English litigant. It is about quality.  The federal law requirement had in mind a professional service.

I do not believe that this is the time for interpreters to take it on the chin. There is a lot of turmoil in the country at this time, but the rights of foreigners are center-stage. Let’s seize the moment to protect the profession and make sure that states do not get away with this plan which could potentially discriminate against speakers of a foreign language by treating them as second-class litigants.

I suggest you educate your communities, talk to your state legislators, and speak to your local media. All of it is necessary, but I also propose you do two additional things that could make the difference:

First, I wonder how many litigants are aware of the fact that the individual provided by the court to “interpret” for them is not a certified court interpreter; that in fact, they will be dealing with somebody who has already demonstrated that he or she is not fit to be a certified court interpreter because he or she failed the exam. I would approach people in the courthouse and make them aware of this circumstance; I would even print a flyer explaining to them that this “interpreter” categories are as good as a three dollar bill, regardless of what the government tells them. Ask them how they would feel if instead of a licensed physician, their outpatient surgery was going to be done by somebody who failed to become a licensed doctor.  Ask the foreign language speaker’s attorney what she or he would do if the court were to appoint a person who failed the state bar as the litigant in a divorce proceeding because there were no children to the marriage. You will see how fast they demand a real certified court interpreter for their case.

Second, organize yourselves either through your local professional interpreter association, or independently, and volunteer to attend court hearings where this paraprofessionals are “interpreting” (after all court is open to the public) and keep score. Write down every time one of these individuals is late for court, acts unethically, does something unprofessional, and makes an interpreting mistake. Write down how they enter their appearance in court, see if they claim to be certified court interpreters. After a few months, or during election time, send this information to the State Bar, to the publishers of voters’ guides, to the political parties, to non-for-profit organizations with tremendous weight in court elections such as Mothers Against Drunk Drivers (MADD) and to the local media. This way people will know who are the judges who care about access to justice, and who are the judges who only care about getting federal money.

I do not believe that these actions will solve all problems, but they will help to expose these programs for what they really are. If you do not do it, nobody will; not because they do not care, but because they do not know. I now invite you to share with the rest of us the current situation in your own state administrative office of the courts.

Ignorance and negligence could kill a legendary interpreter program.

Dear Colleagues:

Humans are reluctant to think that something that was very good in the past could end up as something very bad. It goes against our idea of making things better, contrary to our concept of progress. Unfortunately, it is too often that a bad situation manifests itself right in front of our eyes. Just think of Venezuela; once the best economy in Latin America with a bright future ahead, and now a sad story of poverty, government corruption, and hunger, where millions of bright good people suffer the consequences of incompetent decisions.

The interpreting world has had its share of cases where a good situation turns bad. Today I will share with you a tragic story that, without prompt and able action, could become the Venezuela of the interpreting world.  First, a word of caution:  The story I am about to share with all of you depicts an intolerable situation in a certain region of the United States, and it directly impacts a relatively small segment of our professional community; Nevertheless, the conditions that gave birth to this tragic scenario could easily happen again anywhere in the world, perhaps in your area, maybe in your professional field. In fact, I am sure that this is happening in other regions of the planet.  It is for these reasons that I invite you to carefully read this story, so you can learn how to recognize the symptoms, and find a way to take action defending your profession before it is too late.

This story has to do with court interpreting in the United States.  Many of you already know that court interpreting is the most common interpreting practice in the United States. It has the most interpreters, and it is the only specialization that has its own legislation at the state and federal levels.

For American standards, compared to other types of interpreting, court interpreting has a “long history” of regulations and professional standards in the United States. It goes back to 1978 when the American federal government passed the Federal Court Interpreters Act which required that Spanish language interpreters passed a certification exam in order to qualify for work in the federal court system. Soon after, several individual states followed the example of the federal government, and developed their own legislation to test and certify Spanish language interpreters who were going to provide professional services in that particular state system.  The first state to set its own system was California in 1979, followed by New York, New Mexico, and New Jersey in the 1980s. These efforts culminated with the creation of the (now defunct) Consortium of States where a majority of the states came together, combined resources, and developed a test that served as the basis to certify those Spanish language interpreters who met the minimum requirements to work as professionals in a given state judicial system. After the creation of the Consortium, individual states developed certification tests in other languages to meet the needs of their specific areas.  New York and California did not participate in the Consortium of States, but New Mexico and New Jersey became the “gold standard” for court interpreter certification at the state-level in the U.S.

Due to its history and traditions, New Mexico became a pioneer and a national leader in all court interpreter matters: A founding state of the Consortium, New Mexico was the first state to allow non-English speakers, who were American citizens, as jurors at the state court level, actively participating in the trial process and jury deliberations with the assistance of a court interpreter. It also developed a very important professional community of Navajo court interpreters, and considered all court interpreting services as one profession, for the first time bringing to the table, at the same time, all spoken foreign language, Native American language, and Sign Language court interpreters.  Other major landmarks in the history of court interpreting in New Mexico include being one of the first states to require continuing education to keep the certification current, having a state supreme court justice as an active advocate of quality standards in court interpreting, and it became the sponsor of the largest annual court interpreter conference for a state of its size.  In other words, New Mexico took some of the biggest names in the interpreting and translation conference world to its state so that the local professionals could benefit of these trainings at a very low cost.  New Mexico was the “gold standard” for other states and the quality of its court interpreters was recognized throughout the country.  It was at this time, when things were going the right way, that two events changed the course of this court interpreter program, and pushed it to the edge of the cliff where it started its current freefall: There was a change of the guard at the helm of the state program, and the federal government exercised its muscle to compel the states to comply with the requirements of Title VI of the Civil Rights Act. Among them: the state’s obligation to give universal access to all services provided with federal funds, including all non-English speakers. All of a sudden, furnishing certified court interpreters in all criminal law cases was not enough anymore. New Mexico needed to offer interpreting services to all non-English speaking individuals who walked into a state government office.

The landscape changed. Due to his age and other personal reasons, the State Supreme Court Justice who had served the interpreting community as an advocate and unconditional ally for so many years, took a back seat and slowed down his pace; the person in charge of the administration of the state court interpreter program left, and even her very capable assistant of many years transferred to another government position. They were replaced by a newcomer with academic credentials but without court interpreting experience, and lacking the knowledge necessary to meet the linguistic and cultural needs of such a complex population and professional interpreter community.

The changes started almost immediately. Some of them were noticeable right away, others did not show their head in plain sight until many months later. The state government officials’ attitude towards the interpreters changed radically.  From the head of the Administrative Office of the New Mexico State Courts, to the language access services statewide manager, to the rookie judge (not a Supreme Court Justice anymore) who now actively participated in all interpreter issues that had to do with an entity created by the state called the New Mexico Language Access Advisory Committee; policy, attitudes, and decisions began to change.  There would be no annual conference anymore; the conditions that interpreters had been working under for many years would be reevaluated to cut as much as possible; the cordial and professional relationship, based on mutual respect, that had existed for decades between the interpreting community and the state would now be replaced by a tough attitude where the difference in size and power would be clearly exercised by the big guy in the contractual relationship, now very willing to show its muscle in the event of a minor dissidence or difference of opinion; and the Civil Rights Act’s Title VI requirements would be portrayed as fulfilled by creating a less expensive sub-par category of paraprofessional quasi-interpreters, instead of fostering and promoting the growth of the interpreter profession, thus meeting the minimum standards of the Civil Rights Act mandate, which of course, would require more funds and a greater effort on the part of the state, including, but not limited to, the Administrative Office of the Courts’ active participation in the preparation of a budget to be presented to the state legislature where fulfilling the true mandate of Title VI of the Civil Rights Act would be a top priority for the judiciary, whose only reason to exist as part of the government, is to guarantee an administration of justice inclusive of all citizens of the state.  Of course, this would demand a different attitude by the state, with a judiciary willing to battle the legislature, and go to the United States Justice Department to denounce the State Legislature whenever it was not addressing the equal access to justice mandate. A very different attitude, especially when compared to… perhaps securing judges and bureaucrats’ salaries and then throwing everybody else under the bus.

I have been told by many interpreters in New Mexico that since the time this change of priorities took place, the state has switched interpreters’ minimum guaranteed periods of work, it has changed its travel policy to pay less to the interpreters, there have been attempts to include as part of the original contract, attachments that fundamentally change essential parts of the interpreters’ contracts after these agreements have been executed already; I have listened to stories of interpreters been disrespected at Language Access Advisory Committee meetings; the story of an interpreter whose certification was revoked for no reason, who later won a legal case to get the certification reinstated, but has been isolated by the state officials who have never let this person work in the court system again.  I have seen the abysmal difference between the quality of a certified court interpreter’s rendition, and the mediocre paraprofessional services provided by the so called “justice system interpreters”, and I have listened to the American Sign Language Interpreters who share the same concerns as their spoken language counterparts regarding the quality of video remote interpreting, and more importantly, the level of interpreting skills of those who may provide the service from out of state, perhaps without a New Mexico or federal court interpreter certification.  It is possible that the State of New Mexico has designed a strategy to justify its actions. Even though what they are doing is legal, and I am in no way suggesting that the state has violated any law; it is still wrong for the profession, wrong for the interpreters, and bad for the non-English speakers who need a professional certified court interpreter to protect their life, freedom, or assets

I know that many of our colleagues in New Mexico are fighting a very important battle to protect the profession and the true professional interpreter; many have retained an attorney to represent them before the everyday more aggressive attitude of the state officials, and many of them are refusing to sign a contract with the state, unless and until, the minimum professional work conditions that they are requesting, and constitute the minimum standards everywhere else in the civilized world, are met by New Mexico. Just like we did last year when we, as a professional community, backed up the efforts by our immigration court interpreter colleagues in the United States until SOSi agreed to better their fees and basic working conditions, let’s all be one once again and support our colleagues in New Mexico.

Finally, to our colleagues in New Mexico, I encourage you to talk to the State Bar and make all attorneys in New Mexico aware of the fact that the state is on the brink of destroying that tradition that made New Mexico the “gold standard” of court interpreting at the state-level in the United States.  Submit articles to the New Mexico Bar Bulletin for publication, even this piece. I could almost assure you that many lawyers are not even aware of the abysmal difference between real certified court interpreters and the individuals the state is furnishing for so many of their court appearances.  Make sure that your voice is loud all over the state.  I now invite you all to share your comments about this situation and many other similar scenarios in the United States and many other countries.

Are we protecting our profession? Part 2.

Dear Colleagues:

On the first part of this entry we discussed the role that professional associations should play on the face of antitrust legislation and its adverse effect on our profession.  Today we will explore another crucial aspect of the profession that has been under siege for several years; and if some external forces have their way, it could set the profession back to the Stone Age.  I am referring to the very popular tendency to minimize the importance of interpreter and translator professional licenses, certifications or patents and the acceptance, and in some cases even blessing, of lesser quality paraprofessionals as the preferred providers of services by many government entities and multinational interpreting and translation corporations who make the decision to hire these individuals, who are unfit to practice the profession, based to the extremely low fee that they command.

It took interpreters and translators many decades of constant struggle to get to the point that their accreditations became widely known and accepted as the standard of quality among those providing the service.  Finally, holding an American Translators Association certification, or proof of many years of experience,  gave the real professional translator the needed tool to argue that she should get the job over the individual whose only credentials were the translation of his parents’ birth certificates and a couple of elementary school reports.  The days when a real professional interpreter would lose an assignment to a person whose only linguistic experience was that he had lived in two different countries during his life, became less common when true professionals started to demand top assignments with their interpreter degrees, or their court, or healthcare certifications in hand.  There was a lot to be done, but interpreters and translators were on their way to educate more prospective clients and government officials every day.  People began to notice the difference on the quality of the service rendered by a real certified interpreter or translator.

But, since nothing can come to the interpreting and translation world without drama and tragedy, technological developments such as CAT tools and telephone/VR interpreting came to be. This should have been a welcome development that benefited interpreters and translators; however, this new technology, combined with a global economy where big corporations seek profit by bastardizing a real profession and turning it into an assembly line, and changing its name from profession to “industry”, injected a new player to our eternal drama:  the opportunist, also known as the “new talent scout” whose sole function was to undermine established professions, like ours, and replace quality professionals with cheap novice paraprofessionals who see this individuals as their ticket out of the flipping burgers world.

Compounding the problem in the United States, there was a new administration in the White House, whose attorney general was determined to compel the state-level agencies who were recipients of federal funds, to provide access to their services for everybody, regardless of the language they spoke. This in itself sounds very good and fair, and in fact it was not just the right thing to do by the administration, it was long due as this mandate had been part of the law since the mid-sixties when Title VI of the Civil Rights Act was enacted.  In fact, to an interpreter or translator who did not know the reality of the American system this would look like a pot of gold. All of a sudden millions of people who needed interpreting and translation services were going to get them! Unfortunately, reality and a short-sighted government opted for the easy way out, a path that was doomed from the beginning. Let me explain: This instantaneous demand for many more interpreters and translators exceeded by far the supply of professionals in the United States, and to meet the mandate, the states decided to enable just about any almost-bilingual individual, to provide translation and interpreting services, instead of promoting more college programs and encouraging American citizens and permanent residents to prepare themselves, and become true professional interpreter and translators, who would have access to professionally remunerated work due to the implementation of this legislation.

When the opportunists, also known as the “new talent scouts” realized what was going on, they immediately saw the possibility for huge profits by providing the required services with tons of these paraprofessionals, who they immediately hired at rock bottom fees.  Moreover, they saw the possibility of making their margins even bigger by using machine translation and retaining humans as proofreaders, and by providing interpreting services by telephone, and lately by video remote interpreting or VRI in some cases, while hiring these new “type” of “interpreters” by the minute (or if they are lucky by the hour).

Government officials liked the solution, but they still had one more obstacle that was keeping them from going all the way with these multinational corporations operated by the opportunists, also known as the “new talent scouts”, who by now were active in social media, writing their own blogs, and organizing their own conferences to build themselves up like interpreting and translation “self-proclaimed gurus”. That obstacle was the certification.

The certification, that extremely difficult and elusive project that took real interpreters and translators several generations to create, and then make known and widely respected, was by now a requirement in the law.  It was obvious that the new paraprofessionals would never pass a certification exam, so the government officials and their “associates” had to think fast, and cheap.

The solution they came up with was the creation of a “second class” tier of people who they call “language facilitators”, “justice-system interpreters”, and many other labels, avoiding this way the uncomfortable, and perhaps illegal alternative of referring to them as translators or interpreters, who, in lieu of a real certification, would be “accredited”, “registered” and many similar names.  Now they argue that these individuals can provide the professional service as long as the content is not too difficult or the event is not very important!

Finally, to end the vicious circle, some of our opportunistic “friends”, also known as the “new talent scouts”, realized that with government officials willing to do whatever possible to go around the true mandate of Title VI, which would require them to use certified, experienced, professionally trained interpreters and translators, they could get another piece of the pie by pulling a rabbit out of a hat, and creating a mutant creature they would call: “community interpreter certification”.

The principle is very simple: What do you do when you have a group of people who cannot pass the interpreter certification exam? You develop another program with an exam easy enough for anybody to pass, and you propose it to the authorities as a legitimate certification for court cases before administrative judges, for client-attorney interviews, and for simple medical events. Do you see the pattern? Once again we have the not-so serious event and the not-so difficult content rationale to justify the use of mediocre individuals, who have only one advantage over the real professional, experienced, certified interpreters and translators: They will work for peanuts; because whatever they get paid will be better than the money they were making before they got “discovered” by the talent agent.  Never mind the fact that administrative law hearings are as complex as Article Three court hearings as I have indicated on a previous entry to this blog a few months ago.

The situation turned for the worse when the implementation of Title VI at the state-level civil courts in the United States was narrowly interpreted by many of their administrative offices, as meaning that only interpreters supplied through the judiciary could provide services in civil matters. This actually killed the main source of income to many entrepreneurial interpreters who had opted out of the bureaucratic, low-paying criminal court assignments, and had developed their own client-base, charging for their services according to supply and demand. Oftentimes, because of the complexity of civil litigation, and because of their type of clients, these interpreters fared much better than their counterparts who stayed on the criminal court bandwagon.  Title VI guarantees equal access to all government funded services, including the administration of justice, but it does not make it illegal for litigants who want to, and can afford it, to hire private interpreters.  In my opinion, this is a classic example of a situation where professional associations needed to protect their individual members, and the profession, by advocating for the availability of private interpreters to be retained for civil litigation.  Unfortunately, instead of taking action, our biggest professional association in the United States not just sat on the sidelines, but welcomed the new “civil court-provided interpreter system”, and remained silent when some states decided to meet the requirements of Title VI by hiring big “interpreting services” agencies (who view our profession as an industry) to program the interpreters for civil cases.

To summarize the situation, we now have an environment fostered by the government authorities, and exploited by the multinational interpreting and translation corporations, plus some small “local talent” that was able to learn fast how to do this thing, where certifications and education do not matter anymore, where assignments are going to questionable paraprofessionals, many of whom have never been able to pass a certification exam, who are working under terrible conditions, in exchange for a miserable fee.  The first logical reaction of any interpreter or translator should be one of outrage, disgust, frustration. The second reaction should be to talk to its professional association and ask it to represent its members and protect them from these nefarious tendencies, thus saving the integrity of the profession.

Attorney and medical associations are vigilant and protective of their members and profession. They do not allow, under any circumstance that paraprofessionals practice law or medicine. In fact, attorney associations set the standards of practice in their profession. No agency or its equivalent is allowed to set the tone.  They have lobbied for, and achieved legal protection: In the United States it is a crime to practice law without a license, and this applies to all court proceedings, including administrative courts.

Unfortunately, this is not the case with some of the bigger translator and interpreter associations.  They keep silent when the government creates these groups of paraprofessionals to “meet” the requirements of Title VI. They invite those who are turning translators into proof readers to their conferences to recruit more of the young talent before they learn to separate good from evil; Instead of protesting, criticizing and denouncing the birth of that Frankenstein’s monster called “community interpreting certification”, they celebrate the lowering of the bar and open wide their organizations’ doors for these paraprofessionals.

Moreover, they welcome as their members many of these multinational corporations, “self-proclaimed” gurus, and opportunists, also known as the “new talent scouts”. Maybe they do so because they do not know of all these terrible things that are happening to the profession. Maybe they let them in because they share their view of interpreting and translation not as the professions they always were, but as industries where the proofreader (formerly known as translator) and the part-time telephone operator (formerly known as interpreter) will happily hold hands at the assembly line and praise the virtues of the big “language” corporations. The question is, what are professional associations for? I now invite you to share your comments about this reality we are living pretty much around the world, and to offer your solutions to the role that a professional association should play in the world of interpreting and translating.

Low-cost interpreter factories.

Dear Colleagues:

It seems like every time I open my mailbox, see a tweet, or read a professional publication, I see new advertisement for all these interpreter courses, interpreter certifications, interpreter great opportunities, and so on.  There are many government entities, multinational agencies, professional associations, and “professional trainers” who have discovered a new business: create interpreters from nothing!

Let’s see: Just a few years ago Spanish language court interpreters in the United States could only be certified by the United States Administrative Office of the Courts (federal) or by the Administrative Office of the Courts of a state member of what was called the consortium. These credentials were widely known and recognized. Everybody knew what was behind them: a federal certification was more than a state-level certification, and then… there were the non-certified individuals who were precluded from working in the court system, and in those cases when they were used by the government, they were ushered in through the back door because they all knew that they were doing something that should be kept “confidential”.

Well, the enforcement of Title VI of the Civil Rights Act became a reality for all state courts so the Consortium was no more, it has now been replaced by the Council of Language Access Coordinators (CLAC) and now, in order to keep those federal funds coming, the states have devised a clever plan to circumvent the court certification requirement which would be the thing to do according to law, but very expensive, so they have created this new “category” of people who  cannot pass the certification test, but are allowed to work in court, entering through the front door,  called “qualified”, “conditionally qualified” and other versions of the same thing: an unqualified individual doing a job that is federally mandated and requires of certification.  Yes, it is easier, and cheaper, to mass produce these individuals who, in my opinion, are trained to do a job that does not exist, and pays lower than a professional certified interpreter would work for.  These individuals are now produced in “programs” developed by some states with the help of opportunist community colleges and “professional trainers” who see fit to create a program and go through the motions in order to deliver these paraprofessionals.

But this was not enough. The developments above showed the way to another lucrative business: the development of another category of interpreter who would be called “community interpreter” but would provide services in legal arenas where the court proceedings are of Article One of the U.S. Constitution: Administrative Courts. The reason for this new category, according to those who are now benefiting from its implementation: To fill in the gap in the legal system that was not been serviced by certified court interpreters.  The real motivation: That these courts and their proceedings are not covered by the court interpreter legislation, so there was a great opportunity for agencies to jump in, “certify” their people, and cover the hearings while paying these para-interpreters very little money.  Again, the “certification” programs (sometimes called “diploma” programs) have been developed by individuals who saw the opportunity to make money. There is no official oversight nor legal authority for the existence of these “community interpreters”. The only thing that is clear is that court proceedings in administrative courts are as important and complex as the ones heard in Article 3 courts. This is why, to be able to appear before administrative law judges, attorneys have to pass the same bar exam and be members in good standing of their state bar. No lesser requirements for attorneys, but non-existent requirements for interpreters. Obviously, there is a lot of money to be made in a service where the interpreter pay is so bad that no real self-respecting interpreter would get involved.

Then we have the professional associations and multinational agencies that offer their own “certifications” “qualifications” or whatever they chose to call them, to those left-overs who cannot work anywhere else and have to settle for a quick course online, a 15-minute exam online, and a dismal pay in exchange for telephonic or live interpreting at medical offices, school classrooms, community meetings, and the likes.  I do not blame those who are providing what in my opinion are questionable services, they are taking advantage of a void in the legal system and a weak group of interpreters who do not fight for their profession, reputation, betterment, and income. The blame is on the authorities who chose not to fix the situation and foster the spread of these “interpreter factories” all over; on the ignorant clients who buy the Brooklyn Bridge every time the agency sells it to them, and on the self-respect and ambition lacking so-called interpreters who enable the system to continue, instead of studying to better themselves as real conference, court, healthcare, or community interpreters.

We as professional interpreters need to protect our profession, we need to watch over our future, and we need to stop this do-nothing attitude and stand up, educate our clients, better ourselves, join real professional associations that work for the interpreters and not against them, and embracing the new technology, explain to the client that, compared to those I mentioned above, we represent quality, and many times savings, as we work without the middle man, the only actor who is not necessary in this play.   There are some good agencies, trainers, and professional associations out there, unfortunately, most of them become known to the interpreters once they reach certain level within the profession. It is our job, and responsibility, to point the new colleagues in the right direction.  Please feel free to share your comments with the rest of us, but please abstain from coming here to defend the entities I wrote about. They have plenty of forums where to make their case.

This time of the year could be very dangerous for some court interpreters.

Dear Colleagues:

I just read a contract that one of the States in the U.S. is asking all court interpreters to sign if they want to continue to work in their system. The document is 38 pages long and it is full of legal terminology, rules, and sanctions that only an attorney can understand.  This is not an isolated case. Because of political pressure and budgetary prioritization, court interpreter programs are getting less money from their administrative offices at the state level. In other words: There is hardly any money to pay for interpreting services at the state level in many states.

Although the Civil Rights Act is over fifty years old, it was only a few years ago that the federal government decided to enforce its compliance at the state level in the case of equal access to the administration of justice, regardless of the language spoken by the user of the service.  When the federal government came knocking on the door of each of the fifty states, and told their state judiciary to comply with the law or lose the funds they had been getting from the feds, states started to look for a solution to this problem. In reality, up to that moment, the states were complying with the constitutional requirement to provide court interpreters in criminal cases, but in many states there were no court-funded court interpreters available for civil cases and other additional services offered by the courts to the English-speaking population.  The message from Washington, D.C. was loud and clear: In order to continue to receive (much needed) federal funds, the states had to provide interpreters for all services they offered, not just criminal cases.

In some parts of the country the first problem was as simple as this: There were not enough certified court interpreters to meet the legal requirements; in other regions the problem was slightly different: There were plenty of certified interpreters, but the courts were not willing to pay the professional fees commanded by these (for the most part) top-notch interpreters in that state.  These professionals had been there for years, but due to the low fees paid by the state court system, they were not even considering the state judiciary as a prospective client.

When faced with this dilemma, a logical and ethical option should have been to develop a program to encourage more young people to become certified court interpreters, train them, and then test them to see if they could meet the state-level certification requirements, set years before and universally accepted as the minimum requirements to do a decent court interpreting job.  Some states’ needs could be met this way, but not all of them. For that reason, a second logical step would have been to raise the professional fees paid to court interpreters in order to entice those top-notch interpreters, who were not working for the courts, by making the assignment profitable and attractive. Finally, for those places where this was not enough, state courts could have used modern technology and provide interpreting services by video or teleconference. Administrative offices had to develop a plan, categorize the services offered and decide which ones required of an experienced certified court interpreter, find the ones that a brand new certified court interpreter could provide, and select those instances that, because of their nature and relevance, could be covered remotely by a certified court interpreter elsewhere in the state or even somewhere else.  This process also needed that state court judges and officials acted within the constitutional system and asked their respective legislatures for the funds to comply with the federal mandate.  It is doubtful that legislatures would risk losing federal funds by not approving such monies; and in those cases where the local legislators would not grant more funds, state court administrators and chief judges needed to do their job, and truly provide equal access to justice to all by reorganizing priorities, and perhaps sacrificing some programs, even those that were near and dear to a judge’s heart, in order to find the funds needed to meet this priority that is above most others, not just because of the federal funds that the state would lose in the event of non-compliance, but because those in charge of the judiciary should consider equal access to justice a top priority, and I really mean at the very top.

Unfortunately, my dear friends and colleagues, most states chose an easier way, even though it did not deliver what the Civil Rights Act intended.  They decided not to rock the boat with the legislature and play it safe, they decided not to make true equal access to justice a priority by recruiting and training quality certified court interpreters, instead, they opted for ignoring the excellent professionals in their area by not raising interpreter fees, thus making the assignments profitable to professional interpreters. They decided to come up with a “plan” to keep the federal money in their accounts by making believe that they were complying with the federal mandate of equal access to justice. This is what many of the states decided to do:

Instead of recruiting and training new certified court interpreters, they decided to create a group of paraprofessionals who would “deliver” interpreting services. These individuals were drafted from the ranks of those who had always failed the certification exams, and by recruiting bilingual individuals with no interpreting knowledge whatsoever. States justified their decision by arguing that these individuals would receive the necessary “training” to interpret in certain scenarios of lesser importance, where people who had partially passed the certification test would be considered as professionally qualified (semantics vary from state to state but it is basically the same) even though in the real world they should be deemed as unfit to do the job. Moreover, bilinguals would be trained to “assist” non-English speakers with some administrative matters in the courthouse. Of course, this brilliant decision would set the profession back to the good old days when prevailing judicial culture was that knowing two languages was all you needed to interpret in court; but that was of little importance when balanced against the possibility of cancelling a court program that was politically useful to a judge or an administrator.  This is how the “warm body next to the court services user so we don’t lose federal funds” theory was born.  The spirit of the law was ignored.

There is as much quality and true access to the administration of justice when a person who failed the court interpreter certification test, or a bilingual court staffer, interprets for a non-English speaker individual as there is medical knowledge when the guy who failed the medical board sees a hospital patient, even if the appointment is to take care of an ingrowing toenail.

Of course, the process above taught court administrators a valuable lesson: court interpreting services was a good place to save money, a wonderful way to channel budget resources somewhere else, and a great way to avoid antagonizing the state legislature, because there would be no need to ask for more money to fund the program.  This was the origin of the next step backwards: Fee reduction.

Court administrators did not stop here. They now knew that they could get away with more, so they decided to lower interpreter fees. In most cases the reduction did not come as a lowering of the fee itself; it was accomplished by cutting guaranteed hours, reducing mileage and travel reimbursement, changing cancellation policy, and by creating a new bureaucratic machinery designed to oversee what interpreters do minute-by-minute. Maybe it should be referred to as “to spy” instead of to “oversee”.

Fast forward to today, and you will find these huge interpreting services contracts in many states. The reason for them is not that court interpreters all of a sudden went bad and stopped doing the good work that they did for decades; these contracts are motivated by more reductions to the interpreters’ fees and by developing this super-protection for the state, leaving the freelancer with little or no defense before potential abuse by the court administrators.  What other justification can these state contracts have when the federal court interpreter contract is a very short agreement, which usually does not change from one fiscal year to the next, and is drafted and developed individually by every federal judicial district?

These state contracts that court interpreters are expected to sign without the slightest objection, have been drafted by the administrative office of the courts’ legal departments; they have been amended to include any possible ways to reduce the interpreters’ real fee that the states missed when drafting last year’s contract, they include sanctions to interpreters who do not comply with sometimes ridiculous duties, without setting any process of notice and hearing; they are written in a complex style full of legal terms and ambiguity that only an attorney can understand.

I am very fortunate that I do not need to sign one of these contracts, as state courts have not been my clients for several years; but it concerns me, as a defender of our profession, that my colleagues may sign these documents out of fear or hopelessness.  I invite all those court interpreters who have been, or will be asked to sign one of these agreements in the next few months, before the new fiscal year starts in July, to seek legal representation. It is your professional career, it is your future. I believe that state (and national) level professional associations should negotiate a deal with a labor relations or civil law attorney, where services would be provided at a lower fee, and offer it as a benefit to their members. In fact, I would like to see all interpreters who are members of a state or regional professional association present a common front and negotiate these contracts with the state administrator.  As state court interpreters we need protection, because if we do not act, we will continue to move backwards. They already told many of us that there is no money and they blamed it on the state legislature, now we know that perhaps they did not try to protect the interpreter program no matter what.

They are paying you less, making your work conditions very uncomfortable, they already took some of our work away and gave it to mediocre cheaper paraprofessionals.  All professionals negotiate the terms of a contract, and before they reach an agreement, they have the benefit of legal representation. The administrative office of the courts is represented by their attorneys; interpreters, like all professionals, should at least be represented by an attorney before they sign a new agreement. I now ask you to comment on this situation and the ways to recover what we had already achieved in the past, so we can move forward, and for the first time fully comply with Title VI of the Civil Rights Act.

“Get an interpreter for that hearing, and try to spend as little as possible”.

Dear colleagues:

Every time I read an article about court interpreting, look at your social media posts, or have a face to face conversation with a court interpreter, I cannot help but notice how the working conditions constantly deteriorate. For some time we have witnessed how the court interpreting system of the United Kingdom was completely destroyed and our colleagues had to courageously fight back so the rest of the world knew what had happened in their country. Time continues to run, and nothing has been done to improve that system now run by an entity whose greatest achievement was to sink the quality of interpreting services to an unimaginable low. We have witnessed the difficult times that our colleagues who want to do court interpreting face in Spain. We have heard many stories of court interpreters around the world having to fight for a professional fee, a professional work environment, and respect to the profession.

The situation in the United States is also very sad. It is true that the enforcement of Title VI of the Civil Rights Act has left little choice to the states. Now, state-level courts that want to continue to receive federal funds must provide interpreting services to all non-English speakers who need to have access to the justice system. The new demand for court interpreters beyond criminal cases has “inspired” many court administrators and chief judges to act in new and more creative ways to satisfy the requirement of having an interpreter next to the non-English speaker, even when the quality of this professional service is at best doubtful. To this day, there are jurisdictions where the question is: Does a warm body fulfill the legal requirement of providing interpreter services? Sadly, in some cases the answer seems to be “maybe”.

But the state courts want to comply with the federal mandate, and it seems that some of them will stop at nothing in order to achieve their goal. A popular formula was born: “Get an interpreter for that hearing and try to spend as little as possible”. The origin of this strategy is not clear, but it is obvious that this solution was not conceived by an interpreter. This is not even the brainchild of an administrator who at least has a basic knowledge of the interpreting profession; moreover, this doctrine has been embraced by some federal level courts as well. Let me explain.

Some court administrators have implemented a fee reduction. Today, some interpreters get paid less for their travel time to and from the place where they will render professional services; they get a lower fee, less compensation per traveled mile (kilometer elsewhere in the world) no reimbursement for tolls and bridges, and other very crafty ways that some courts have devised to pay less for interpreting services.

Other courts have increased the level of “scrutiny” and now watch over the court interpreters’ shoulder while they are doing their job; not the way a client observes the work of a doctor, a lawyer, or any professional individual, but the way a person watches over the performance of the guys who dry your car when you take it to the car wash. Many times this breathing on your neck type of scrutiny is enforced by adding paperwork and bureaucratic requirements to the fee payment process. To the interpreters, this means more time spent in the payment process, while making the same money than before the new requirements were in place. They are effectively making less money than before.

Of course there are also courts that now pay a lower fee during the contracted time if the interpreter’s lips are not moving: They pay a partial fee for the break time and travel time, even though the interpreters, who sell their time, have allocated those hours, or minutes, to that court as a client. Now some courts are tossing high fives at each other because they paid the interpreter a full fee for 45 minutes of work and a reduced fee for the 15 minutes in between cases when the interpreter did not interpret because the judge had to go to the bathroom.

And there is more: some jurisdictions have removed themselves from the payment process in those cases when, due to a possible conflict of interest, the court assigns a particular case to a private independent defense attorney, who is a member of a panel of lawyers, who can be appointed to these cases in exchange for a fee that is paid by the judiciary. This jurisdictions do not accept the interpreters’ invoices anymore; they now require the panel attorney to process the interpreter’s invoice and payment, generating two very sad effects: (1) Sometimes, the interpreter will have to wait a long time to get paid because their payment processing is not a top priority to the lawyer, and (2) It will help to keep alive the idea that interpreters are second-class officers of the court who do not deserve the court’s trust, because it is clear that these jurisdictions opted for a system where the attorney will need to access the court’s computer system to process interpreters’ payments, which is “preferable” over a system where interpreters would have to be granted that same access to the system. Why? Because it is too much of a risk to take? You can arrive to your own conclusions, but the fact is that this policy is very demeaning.

My friends, when you see and hear about all these policy changes you have to wonder: As these new strategies were discussed and adopted, where were the court staff interpreters, and the judges, and the administrators who know what interpreting is about? And once they were implemented, why did the freelancers continue to work under these terrible conditions? I now invite you to comment on this policy changes, other rules you may have noticed somewhere else, and the reason why these changes are being implemented with so little opposition.

Some interpreters in the U.S. may not have an even playing field anymore.

Dear colleagues:

The issues discussed in this post apply to situations lived by many interpreters all over the world. Our profession is growing and fighting for recognition and prestige. For this reason, I think all interpreters should read this story, regardless of the country where they provide their services.

Every interpreter who has worked with the judicial system in the United States knows that court interpreting at the state-level is very different from providing our services at the federal judiciary. We also know that there are sharp differences on how each state procures court interpreters to meet their legal needs. Although most of them pay very little to the certified court interpreter, some pay “better” than others; some treat interpreters better, and some remain ignorant as of the role of the interpreter and its high relevance to the judicial process. This is all widely known; some court systems are infamous for treating the interpreter as an inconvenience rather than a constitutionally-mandated component of the judicial process (in criminal matters). This is not the issue that I want to discuss with you today. I want to talk about something else.

I would like to discuss with you the new scenario that our state-level independent court interpreters in the United States are facing with the enforcement of Title VI of the Civil Rights Act of 1964 (not a moment too soon) and the financial difficulties and budgetary cuts that many states are dealing with at this time. As many of you know, Title VI of the Civil Rights Act is a federal law that requires all government agencies, regardless of their level, to give access to all services to everyone (including those who do not speak English) if they want to continue to receive financial assistance from the federal government of the United States. This includes courthouses. Until a few years ago, only criminal cases had to meet this requirement because, unlike civil law cases, it was a constitutional mandate. This means that now state-level courts in the United States have to provide interpreting services for all civil and family law cases with essentially the same budget they had for criminal cases only. Many states have struggled with this change and most of them are trying to find the correct strategy to meet their legal mandate while at the same time living within their budget. Of course, there are some obvious solutions that state courts have chosen to ignore even though they would greatly relieve their interpreting case load. I have talked about this issue before and, undoubtedly, I will discuss it again in the future.

The facts show that many states are now more cautious as to where and how they will spend their money (or I should say, their constituents’ monies) This has generated a more “creative” approach in many places where the goal seems to be to comply with the federal mandate by simply providing a “warm body” next to the foreign language speaker at the lowest possible cost. As a result, there are now more qualified top-notch court interpreters with less work than ever before, while there is an unprecedented number of underqualified, mediocre interpreters working the states’ systems for a lower pay and more advantageous conditions for the state’s judiciary. There is plenty to talk about, but my motivation to write this post came from something I learned from a colleague who works as an independent court interpreter with the court system of one of the states in the U.S.

Apparently, just before the beginning of the state’s budget cycle, known in the United States as the fiscal year, this state sent out to all court-certified independent interpreters within the state, a professional services contract that had to be executed and returned before the first day of said fiscal year. The contract was a multi-page document that spelled out in great detail the interpreter’s responsibilities to the courts. It also contained a clause on fee payments that indicated the state’s official fee and some other conditions. Among them, there was a minimum fee guaranteed to all interpreters who accepted an assignment with the state courts. The contract showed two different scenarios. Under the first one, and interpreter could be called in to work at the courthouse for two hours, and if the case or cases were resolved before the time was up, the interpreter would be paid for the guaranteed time. The second scenario operated identically, with the exception that it referred to more complex cases and for that reason the minimum guaranteed fee was of four hours. This seemed to be a fair provision that in fact incorporated into this contract a widely accepted practice followed in that state for many years. The problem was on the next sentence of the same paragraph. The contract established that if the cases the interpreter was called for were to end before the minimum guaranteed period was up, the interpreter had to remain at the courthouse in case something else would happen and interpreting services were required. Up to here everything was fine, but immediately after, the contract indicated that said interpreter could be sent to another courthouse in the state to work off the rest of the minimum guaranteed fee. The interpreter had the right to refuse the second assignment, but in that case he would be penalized with a pay cut as he would only be paid for the actual interpreting time, not for the guaranteed time. In other words, the “guaranteed fee” did not guarantee anything, as the interpreter would be at the mercy of the court who would become, for all practical purposes, the employer, because only employers can dispose of their employees time that way. A client cannot control the time of an independent contractor.

I immediately thought of two scary scenarios: Just imagine for a moment that an interpreter with a sick child agrees to work for two hours at her neighborhood courthouse. She needs the income, so she figures out her schedule, gets a babysitter for a little over two hours, and goes to work from 9 to 11 in the morning. All of a sudden, the cases she was called in for do not go to a hearing because the cases are continued to a future date (this happens every day in all courthouses of the United States) It is only 10 in the morning, so she reports back to the interpreter coordinator; she tells her what happened, and sits down waiting for possible cases between 10 and 11 o’clock when she is going home to her sick child. Unfortunately, the interpreter coordinator has other things in mind and asks her to go to a different courthouse 40 miles away. The interpreter objects and claims that going to that other location will take about 30 minutes one-way. The coordinator states that the 2-hour minimum is not over yet. The interpreter explains that she was counting on working until 11 in the morning, and going to the second location would result in an additional 60 to 90 minutes. The coordinator explains that the interpreter would be compensated for her travel time at the reimbursement rate. The interpreter declines the assignment and the coordinator explains that due to the refusal, she will be paid for one hour of services, not two. This could also happen to another interpreter who has other professional engagements (not with the court) immediately after the time she was hired for. You see? The “guaranteed fee” is not such a thing. The court does not understand that interpreters sell their time and from the moment they commit to an assignment they cannot accept anything else during that period of time.

The same contract indicates that the state shall pay the interpreter for the services rendered within 30 days from the time of filing of the invoice; unfortunately, it also states that the interpreter cannot add any late payment interest or penalties when the courts don’t pay on time. Obviously this turns this contract into a one-sided document with no contractual value but for one of the parties: the courthouse. Interpreters are barred from protecting themselves as they cannot pursue compensation for the damages caused by late or non-payment.

Apparently, this contract was exclusively crafted by the courts, and the interpreters did not have an opportunity to seek legal advice and representation before signing the document. Moreover, there is an advisory body for interpreting matters in this state where independent interpreters are a huge minority since all court players are represented separately: judges, administrators and staff interpreters. In other words, the interests of the state will always have a majority of votes in this advisory body. Obviously, something is wrong with this picture. I am not saying that it is exclusively the courts’ fault, because the interpreters needed to be more assertive. And this takes me to the real root of the problem: A silent careless interpreting community dealing with a court administration that wants to protect its interests (as it should) and will take everything it can as long as the interpreters do nothing about it.

Those of you who have met me in person or regularly read my blog know that I am not in favor of protectionism in any way, shape, or form; you have probably read my opinion regarding “equal assignments for all interpreters” and protection to those who are not up to speed with new technologies. I am totally against these ideas. I do believe that it is up to the individual interpreter to do whatever it takes in order to secure more work with the courts or with any other client. You also know that I am not a big fan of working for the court systems, especially at the state level, because they pay very little and often do not treat interpreters like professionals. The best and permanent solution to this problem, from the interpreter’s point of view, would be to leave the court work and do some other interpretation (including out of court jobs where interpreters can negotiate their professional fee with the attorneys) but for those who do not want to quit the courts, my suggestion would be to seek legal advice and negotiate before signing a contract, to use their professional associations to educate the interpreters and perhaps collectively retain the services of an attorney to look over their interests, not the courts’. I am not saying that professional associations should turn into labor unions, nothing like that; all I am suggesting is that besides continuing education, a member directory, and social events, these organizations should look into these issues not to improve working conditions, but to improve the level and quality of the professional service provided by its members. By doing this, interpreters’ working conditions would be indirectly improved as this is a needed requirement to raise the quality of the professional service. Finally, independent court interpreters must consider the court as a client, not an employer. Dear friends and colleagues, the courts are our clients, and they are not even our best clients; even if you get most of your work from them, they are not the best-paying client; therefore they are not your best client. To consider a client as the best because of how much work they send your way instead of because of how well they pay would be like saying that Wal-Mart is a great clothes store because of its volume, when you have many other businesses that sell better products of higher quality. I invite you to post your comments on this issue, and to share your experiences of what you have perceived as an abusive behavior by a state court; and remember, no names or specifics on the courts or people please.