New Bill Aims to Lessen Fallout From AB5-Coronavirus One-Two Punch

Amending AB5 Gig Worker Bill with California Senate Bill 900

The impact of California’s gig worker law, also known as AB5 (California Assembly Bill 5), could not have come at a worst time, according to translators and interpreters (T&Is) working in the State of California. But a new bill seeks to mitigate the adverse effects of AB5 on T&Is.

The provisions of AB5, effective from January 1, 2020, have been the subject of heated debate even before the bill was signed into law on September 18, 2019 — from the SOSi ruling that got the ball rolling back in 2018 to the California Supreme Court’s landmark decision on Dynamex and the fight for exemption from AB5 because, as interpreter associations fought to inform legislators last summer, language industry professionals are not gig workers.

What AB5 did, in a nutshell, was to require T&Is to prove their independent contractor status using the so-called ABC Test. Otherwise, they would basically have to be treated as employees of their clients to continue working; regardless of whether they worked for a client for three hours or three months.

The impact of AB5 was swift. The law had not even kicked in yet when freelance T&Is in California started complaining that translation agencies were already cancelling their contracts back in December. By January, T&Is were scrambling to contain the damage caused by AB5. Now, because of the current pandemic, these groups are hurting even more.

As California state and federal court interpreter Esther Hermida told Slator, “Covid-19 and AB5 have been a lethal combination for our profession. We are holding our collective breaths to see if we can resume our professional lives after this devastating one-two punch to our profession.” Hermida has been working as an interpreter for the past 27 years.

We Just Want an Exemption, Not a Bailout

An April 22, 2020 news release quoted certified court interpreter David Higbee as saying, “As many workers demand coronavirus bailouts, we just want an exemption from this law that is hurting way more people than it helps. We could be working safely from home, but this law is not letting us.”

Higbee is one of the founders of a Facebook group called “Language Pros Hurt by AB5.” According to the same report, the group seeks exemption from AB5 for over 5,000 T&Is in California, who contribute some USD 2bn yearly to the state economy. “AB5 is shackling our professional response and collaboration at a time when interpreters and translators are in high demand to help communicate vital information with non-English speaking residents of California,” Higbee said.

T&Is are in especially high demand during the coronavirus pandemic, supporting the state’s healthcare and law enforcement sectors, among others. But, because of AB5, “Companies are not hiring us. They are leaving the state and contracting our non-Californian colleagues,” Gloria Rivera, a certified court and medical translator and interpreter, said in the same article.

Speaking to Slator, Higbee summed up the prevailing sentiment of those hurt by AB5: “Our profession has been backed into a corner by AB5. It’s a terribly written law — passed without even a basic impact study, denounced by hundreds of economists and every major T&I association.”

“Due to the lack of any other viable alternative, we tentatively support SB900 as a tiny step back in the right direction” — David Higbee, Certified Court and Conference Interpreter

SB900 Fix

California Senate Bill 900 (SB900), which seeks to amend AB5 to effect certain changes in favor of T&Is and language service providers (LSPs), is currently pending before the State Legislature. As of March 26, 2020, SB900 has been approved on second reading and referred back to the Committee for further deliberation.

According to Higbee, “Due to the lack of any other viable alternative, we tentatively support SB900 as a tiny step back in the right direction.” Higbee is a certified court and conference interpreter based in California who has worked as a T&I for the last 18 years.

Hermida concurred, saying “My general impression of SB900 is that it’s the best we can do for now.” She added that T&Is working to be exempt from AB5 “have supported all efforts to repair AB5, and so do I. I am hopeful that the passing of this bill will bring some relief to both agencies and language professionals.”

Higbee, however, is of the opinion that “lessening the impact of AB5 on our profession alone will not fix all the issues caused by this law. While we are not actively discouraging those who would like to see amendments, we maintain that a full repeal or, at least, immediate suspension will be the most effective way to allow the majority of those affected to resume their work and serve their clients in this time of crisis.”

“My general impression of SB900 is that it’s the best we can do for now” — Esther Hermida, California State and Federal Court Interpreter

According to a statement from the American Translators Association (ATA), while the latest version of SB900 has provisions favorable to T&Is, certain aspects of the bill need to be improved to reflect reality and benefit a greater number of language industry professionals.

Among the “positive aspects” of this version, ATA said, are that it (a) allows many T&Is to be classified as independent contractors without having to apply the ABC Test; (b) “expressly includes sole proprietors as a permissible business entity for a service provider.”

Work in Progress

ATA pointed out, however, that SB900 mistakenly classifies language service providers (LSPs) as “referral agencies” rather than “professional services.” They cite the California Labor Code that, based on SB900, would lump LSPs with agencies “connecting service providers for minor home repair, home cleaning, errands, pet sitting, picture hanging, etc.”

T&Is are highly-educated, experienced professionals, ATA said, and “additional services, such as project management, editing, and proofreading, are essential components to the quality provision of T&I services.” Moreover, “the overwhelming majority” of LSPs deliver value-added services (e.g., desktop publishing) on top of “any ‘matching of’ translators and interpreters with end clients.”

“This characterization of the role of language service companies and agencies […] as mere ‘referral agencies’ flies in the face of reality” — American Translators Association

The organization also took issue with an SB900 provision that requires T&Is to deliver services to a client under their own name, not that of the LSP. “This, too, flies in the face of reality as many LSCs shield the names of translators and interpreters to prevent losing hard-earned business. While some may argue this may be desirable, it should not be a prerequisite for classification as an independent contractor,” ATA said.

Additionally, they pointed out, SB900 uses the phrase “certified interpretation or translation services,” which, ATA allows, could be a drafting error: “The services provided in our field are not certified, but rather the actual people providing the services are sometimes certified.”

According to the group, “It is currently unknown if ‘non-certified’ T&I services, which comprise the vast majority of T&I services, would also be covered by SB 900.” And, finally, SB900 “omits existing professional T&I credentials which should legitimately be included.”

ATA concluded by saying that the bill is an “acceptable starting point” for the AB5 exemption language industry professionals have been seeking. They provided a link to lobby group CoPTIC for those who wish to join “its efforts to improve the language of this bill,” and said California T&Is should now reach out to their state legislators and demand that the issues with SB900 be fixed.