When the National Labor Relations Board (NLRB) ordered government services contractor SOS International (SOSi) to reclassify its interpreters working in US state courts as employees in March 2018, the move was seen as a landmark ruling potentially affecting thousands of linguists and the broader language industry.
As employees, translators and interpreters would be entitled to state protection as defined by the National Labor Relations Act as well as benefits reserved only for full-time workers.
The ruling, however, may have broader consequences for the industry than meets the eye.
Barry Slaughter Olsen, Associate Professor of Translation and Interpretation at Middlebury Institute of International Studies at Monterey (MIIS), agrees with the court ruling but sees a difficult road ahead.
“This ruling is good in a lot of ways because it appears that SOSi really treated these interpreters poorly. So the remedial measures ordered by the judge are justified, except one — that all the interpreters be reclassified as employees,” he told Slator in an email interview.
Professor Olsen argued that the ruling “really muddies the waters because it creates the false notion that reclassifying all interpreters as employees is the solution. It is not.”
“Requiring that all interpreters under the contract be reclassified as employees will simply break the system. How can you justify employee status for all interpreters regardless of workload and frequency of demand for a given language combination?” — Barry Slaughter Olsen
The California Workers’ Compensation Interpreters Association (CWCIA) shared Olsen’s view.
“From our limited knowledge, this could be a good thing for interpreters who are court certified and want to be employees of the courts, or who are medically certified and want to have staff interpreter positions in hospitals, etc.,” the CWCIA said in a statement sent through Lorena Ortiz-Schneider.
The association added that this would also allow those interpreters [the case petitioners] access to well-deserved benefits and stability and increase the number of staff interpreters available to service the needs of people with Limited English proficiency (LEP) who come into contact with the legal or medical system.
Seven of the eight petitioners in the SOSi case were from the state of California — four worked for the immigration courts in Los Angeles, two in Adelanto, and one in San Francisco. The eighth petitioner was from Chicago, Illinois.
They were members of Northern California and Hawaii-based labor union Pacific Media Workers Guild (which filed the case) and under contract to provide interpretation services at immigration courts and hearing locations throughout the US.
Because the NLRB has ruled that they were misclassified as independent contractors rather than employees, SOSi was found to have violated many provisions of the National Labor Relations Act including terminating or reducing the work assignments of several interpreters, interrogating and putting under surveillance interpreters or giving them the impression that they were under surveillance, and making coercive statements to employees.
However, the main benefit of the ruling is in the area of remuneration.
Concerns Over Remuneration
“If remuneration were consistent with a market rate, instead of being set at the incredibly low rate it is currently (with no allowance for yearly standard of living increases), this employee status might be attractive to some interpreters,” the CWIA said.
The association noted, however, that the vast majority of interpreters prefer to work freelance.
“Most independent contractors in Workers’ Compensation enjoy the freedom that being an independent contractor affords them. They can set their own schedules and fees and enjoy tax benefits and write-offs. In workers comp, you can work as much or as little as you want to,” it explained.
Moreover, being an employee of an Appeals Board would most likely represent a decrease in income, restrict time available to accept other assignments and put a strain on the provision of certified interpreters available to do other assignments, according to CWCIA.
“As you know, variety is the spice of life, and for interpreters, being able to do medicals, medical-legals, depositions, trials, hearings, conferences, etc., is more attractive than sitting in one location all day.” — CWCIA
Broader reforms ahead
It appears that the NLRB ruling on the labor dispute between SOSi and the Pacific Media Workers Guild was not an isolated case.
On April 30, 2018, the Supreme Court handed down a decision on the labor complaint filed by two individual delivery drivers against package and document delivery company Dynamex Operations West Inc. (Dynamex).
The high court ruled that the company misclassified the drivers as independent contractors rather than employees.
The New York Times reported that this case may have “potentially sweeping consequences for the so-called gig economy” as it could “eventually require companies like Uber, many of which are based in California, to follow minimum-wage and overtime laws and to pay workers’ compensation and unemployment insurance and payroll taxes, potentially upending their business models.”
CNN Money also said in its report that the ruling would “make it more difficult for employers in the state to treat their workers as independent contractors, who don’t enjoy many of the rights employees do.”
The Supreme Court ruling on the Dynamex case is actually also part of a broader government crackdown on the so-called “1099” employees.
In the US, independent contractors file tax Form 1099 to report to the Internal Revenue Service (IRS) how much they earned for the year. Full-time employees, on the other hand, file Form W-2.
To discourage the practice of contracting independent workers with no employee benefits and who do not pay social security, Medicare taxes or premiums for unemployment insurance, the IRS recently issued a much stricter guideline on classifying workers.
No Ordinary ‘Gig Economy’
But the language services industry is no ordinary “gig economy.” The practice of hiring interpreters as independent contractors for government work has been standard practice for decades. And for a reason.
Professor Olsen estimates that currently, approximately three-quarters of interpreters work as independent contractors, not employees. At first glance, he said the idea of being employees is attractive for many interpreters.
“Staff positions are highly coveted. The stability and benefits that full-time employment can bring are desirable. If the workload warrants it, employee status is an excellent option,” he explained.
“However, given the nature of demand for interpreting services, the vast majority of interpreters will never have sufficient volume from any one client to warrant employee status, particularly with languages other than Spanish.” — Barry Slaughter Olsen
In California, the CWCIA said it is possible for interpreters and translators to work on their own, instead of working on contracts farmed out by language services providers (LSPs). However, given the complicated process of the fee structure and the payment system, one needs to be “a lawyer to know how to successfully navigate the litigation system.”
“Where court interpreters are guaranteed payment at a certain rate, LSPs or freelance interpreters bill workers’ compensation insurance companies directly for their services; services which are most often requested by attorneys, both defense and applicant, as well as medical offices and facilities. It is a twisted system, where your clients are not the payors,” the association explained.
“It is a twisted system, where your clients are not the payors.”
“Hence, the recovery process is extremely onerous,” it added. “The regulations allow for litigation, which is costly (USD 150 filing fee per lien, which no freelancer or LSP will file in order to recover USD 90 or USD150 or even USD 300) and time-consuming.”
Professional landscape needed
Professor Olsen recommends that for the interpreter to thrive, a professional landscape where it is possible for the independent contractor model to coexist with an employee-based workplace model is needed.
“The reality is that most interpreters (even those that work with Spanish in the United States) will not find full-time, employee-based work. Organizations need the ability to work with freelance linguists and be able to hire interpreters as employees for the most in-demand languages when conditions warrant,” he concluded.