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

April 27, 2015 § 6 Comments

Dear Colleagues:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 13, 2015 § 6 Comments

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.

December 11, 2014 § 4 Comments

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.

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