Assembly Bill 5: Urgent Lessons for Our Profession

As today, August 30, 2019 comes to a close, word is just in that California Assembly Bill 5 (AB5) was approved by the California Senate Appropriations Committee by a 5-2 vote. The bill will now go to a full Senate vote next month. AB5 seeks to classify "gig" workers as employees and has generated a huge amount of controversy for a large swath of professions dominated by independent contractors; tucked in among them are translation and interpreting.

Regardless of today's outcome, we find ourselves only partway through a longer, hugely impactful journey for our profession. This summer's drama around AB5 has crystallized our understanding of this deeper issue we often label "misclassification," how it is now playing out in our increasingly cloud-based profession, and the woefully inadequate structure our profession's leading players are working with to provide any kind of meaningful protection for working interpreters (and translators).

Today, we offer some of our lessons learned, and state our goal in the coming months to work towards strengthening that structure. This is a long blog - but some topics demand framing and context, and this is one of them.

Recap of AB5:

If you need to get caught up on the story, you can reference our two previous blogs on AB5 here and here.

The blogs reference recent stories and developments related to AB5 and the interpreting profession's response to it. This excerpt from a San Francisco Chronicle story on AB5 provides a useful general description.

The Assembly on Wednesday [May 29,2019] passed “gig work” legislation that could send seismic changes across California’s employment landscape if passed by the Senate and signed by the governor.

Hundreds of thousands of independent contractors, ranging from Uber and Lyft drivers to manicurists, could become employees under AB5, which codifies a groundbreaking California Supreme Court decision known as Dynamex.

The court decision and the bill both apply three-part criteria, called the ABC test, to determine whether a worker is an employee. To be a true independent contractor, it says, a worker must be free from a company’s control, doing work not central to the company’s business, and have an independent business in that trade.

The rub for interpreters and translators is the condition under the ABC test that a worker must be doing work "not central" to the company's business. Since most freelance interpreting and translation work is leveraged through a third party language services company, the central work of these agencies absolutely is being done by contract linguists. However, with the exception of a few, albeit very important, cases, freelance interpreters and translators typically work for many agencies and entities, not for a single behemoth company, such as Uber, FedEx or Amazon. All freelancers' professions are not the same, and the term "gig worker" should definitely not be used as a direct synonym for "independent contractor."

Through this summer, and especially during the past two weeks, a small, ad hoc group of individual stakeholders formed organically to fight the inclusion of interpreters and translators in AB5's definition of "gig workers" in need of blanket "protection": meaning we would be reclassified as employees of all the agencies we contract with.

The goal of this group was to achieve, ideally, a full exemption for interpreters and translators, something other professions such as doctors and lawyers have already successfully demanded and achieved. As the back and forth communication with the bill's authors evolved, a second option, that of the partial exemption, was floated. A partial exemption would mean that interpreters and translators working for more than 3 agencies would not be automatically reclassified as employees.

That brings us to today, to where things now stand, and the lessons we've learned and want to share.

A Vacuum in Representation

The first lesson is the undeniable truth that the professions of interpreting and translation have been asleep at the wheel as AB5 made its way through the legislative process. While several professional associations did eventually come out with official position statements on AB5 (more here), and the California Healthcare Interpreting Association added its voice today, those mostly came after a loose, ad hoc group of individual interpreters took it upon themselves to make this issue visible.

The work of this ad hoc group has been important and admirable. InterpretAmerica has played a very minor part in it when compared to the diligent and time-consuming efforts of others. And as is so often true, change tends to happen when small groups of passionate, dedicated people act with stubbornness, insistence and great energy. All that said, our participation in this process has, in the end, showed us that this is not the process our profession needs to best advocate for its members.

A spotlight has been shown on the fundamental absence of any organizational or institutional infrastructure that could be leveraged to educate and advocate for the full profession of interpreting. There are many reasons for this absence, including the non-profit (versus trade organization) status of many of our most influential professional associations, the high degree to which our profession relies on volunteer work to build out its most important structures and the huge complexity of state legislative processes.

In other words, our pointing out to lack is not meant as condemnation. Rather, it is our hope that we may be close to a collective tipping point to enact some kind of meaningful change in how we are currently advocating for ourselves.

Because, in the end, ad hoc groups, whether made up of individuals or unions, and no matter how well intended, are inherently flawed when it comes to guaranteeing any kind of full or fair representation for the majority.

By contrast, we do enjoy a formal advocacy structure at the national level. If you haven't yet clued into the critical work that JNCL-NCLIS does in Washington, D.C. on our behalf, now is a good time. Not only do they put out a weekly newsbrief that updates readers on all the latest developments about language policy and legislation on Capitol Hill, they send out calls for action when bills are pending and conduct an annual Language Advocacy Day, which gets individual advocates inside legislators' offices with organized talking points about the importance of our professions. Their work, helmed by the indefatigable Bill Rivers, is impressive, impactful and directly related to our individual professional lives.

But national-level legislation represents just one piece of the puzzle when it comes to laws and regulations that govern our profession. More and more, individual state legislation is having a considerable impact on how interpreters and translators get to practice their professions. Overall, this is a positive trend, because it means we are finally on the radar screen as credible, viable professions providing a critical service. On the downside, there is still so much confusion and ignorance about what we do and how we do it, that some of these laws come out seriously flawed.  

Staking a Claim to Our Professional Identity

The second lesson has to do with claiming what has gotten lost in this most recent process around AB5: Our fundamental identity as trained professionals.

Interpreters and translators should be on a par with every other profession that requires education, training and unique expertise. We should be in the same class as doctors, psychiatrists, hairdressers (have you seen what they have to do to be licensed?), lawyers, plumbers or any number of other established professions that enjoy a mixed employee/independent contractor work model.

Our work lives are, for the most part, fundamentally different from those of gig workers, who absolutely deserve concerted action to protect their working conditions as contracted workers for single companies. In those cases where a group of language professionals work under similar, sometimes abusive conditions, such as those that led to the successful court case against SOSi last year, we need avenues to protect ourselves. Those avenues, however, already exist to a significant extant, which is what allowed misclassified interpreters to win a court case in the first place.

And that is the problem with AB5. It seeks to wipe out that mixed employee / independent contractor model and replace it with a forced, single employment status for all of us, not just those working in settings where such single model might make sense, such as for a court house or a large healthcare provider.

In the case of AB5, a labor union that represents a small fraction of the interpreters in the state has been given enormous power, by default due to the vacuum of other voices at the table, to co-author legislation that could have far-reaching negative consequences for the vast majority of translators and interpreters. This legislation was drafted without consultation or serious consideration for interpreters and translators outside of a very small group working in a limited number of settings.

In an effort to reach a compromise with the bill’s co-sponsors, the aforementioned ad hoc group of concerned interpreters (including InterpretAmerica) has been working tirelessly this week—and many all summer long—to get the word out about what is going on and to find a way to ensure that independent interpreters and translators can continue to exercise their professions as they choose.

Earlier this week, InterpretAmerica chose to support a compromise allowing all translators and interpreters who contract with three or more entities in a year to be exempt from the provisions of AB5. This proposed compromise, originally made orally, never materialized in official written form before the Senate Appropriations Committee was scheduled to vote on the bill. And at the time of publication, we still don't know which amendments made it into the bill. The partial exemption may be in there, or it may not.

Which is why we feel that it is important to state, upon further reflection, that we realized that there is no way to foresee what the consequences of a ‘partial exemption” could be. How would eligibility for the exemption be verified? Who would be responsible for verification? Could this result in even more bureaucratic hoops to jump through every year to qualify for the exemption allowing us to work as independent contractors? And how do we, an ad hoc group of interpreters and agency owners, determine what the actual consequences will be? We are neither lobbyists nor legislators. Our expertise lies elsewhere.

This past week has shown us, at InterpretAmerica, that a group of proactive concerned citizens can, when efforts are targeted correctly, achieve great pressure and even a degree of leverage in a fraught, legislative process. What it cannot necessarily do is use that leverage with a knowing eye for all the unforeseen permutations and distortions any new legislation can cause, whether intended or not.

The attempt at compromise was born of practicality. But the more we thought about it, the more we realized that a “partial exemption,” while solving the problem for many, was philosophically flawed. Accepting it would mean ceding professional autonomy.

As noted above, we pride ourselves in being language professionals. We are professionals just like the doctors and lawyers, who have attained that full exemption to AB5. It is simply wrong to cede that right, even partially, to a group of labor leaders and politicians who do not understand the depth and breadth of the professions of interpreting and translation.

Moving Forward

Regardless of today's vote, the fight over AB5 will continue, and many professions will work hard to have a say in the final outcome they feel will best represent the needs of their constituents. We urge you to contact your professional association leaders and encourage them to do the same for you.

Here at InterpretAmerica, we are beginning to see our next marching orders. The misclassification / independent contractor debate regarding interpreters and translators is not new. When we founded InterpretAmerica 10 years ago, the debate was already raging. In the intervening 10 years, we've seen the focus on interpreters and translators sharpen as professionals are square in the middle of this fundamental fight about our professional identity and who gets to decide how we exercise our skill set.

For our part, we have a much deeper, visceral understanding of what is as stake, and we will be using our platform and resources to do whatever we can to help our profession get out of our current "deer-in-the-headlights" state and into one that is proactive, educated and focused on problem solving.

Stay tuned!