Lessons from the Pandemic: Give Freelance Interpreters a Seat at the Table

Some dear friends and colleagues of mine from Washington State dropped this article from Crosscut, a local publication, into our group chat:

COVID-19 delays justice for King County inmates who need interpreters: Non-English speakers are receiving substandard legal representation because interpreters won’t appear in person, attorney says

As I read the article, I began to feel my colleagues’ indignation over what can only be characterized as a scapegoating of Washington’s freelance court interpreters. This article is timely, as I was preparing my next post about the “Invisible Freelancer”. While this article made me and my colleagues fume, it serves as the perfect example of problems I see time and again when it comes to any state court providing their interpreters with the working conditions they need to practice professionally within a state judicial system.

The problem is rarely the interpreters themselves. Every interpreter worth his or her salt whom I know wants to provide professional grade services and will turn down work when they cannot do that. In state compensated cases, the culprit tends to be the court administration and their tendency to leave out interpreters from the conversation when setting up interpreting services. Those airing their grievances in the article may be surprised to learn that pandemic friendly solutions already exist and are in place across the country so court interpreters can provide a truthful, complete, and accurate rendition without having to risk getting COVID-19.

From the article, there seems to be a huge misunderstanding of how court interpreting works shaping the outside perception of the problem. The two main complaints in King County are: 1) a backlog is being created because interpreters do not want to accept in-person assignments, especially those in jails and prisons; and 2) the remote interpreting set up in King County is faulty, unorganized, and cumbersome to the point of affecting the quality of the legal representation Limited English Proficiency Defendants are receiving.

Those cited in the article are correct in stating that many court interpreters across Washington have assessed the risks and benefits and decided that they cannot risk getting sick by taking these assignments. This is not unique to Washington State and is happening nationally. Unfortunately, as the rising number of cases reflects, even with all the precautions in place you cannot eliminate the contagion factor. Thus, many professional freelancers have opted not to take in person work, knowing that their business will take a financial hit. Remember, most court interpreters are freelancers. Like any other independent professional, they have no safety net or employer to support us if they get sick, can no longer work, and as a result, no longer afford health insurance or our other living expenses. While freelancers can’t work in person, they still want to work and have taken the time to quickly get up to speed on the technologies and protocols we need to put in place on our end to provide professional grade services from home. It’s not ideal, but it works and it works well.

The individuals quoted are also correct in their assessment that Washington’s current ad hoc system for remote interpreting in client meetings is downright awful. Interpreters have also noted these factors and have decided to decline these remote assignments because under those conditions they cannot uphold their duty to provide faithful, complete, and accurate renditions. Again, interpreters aren’t refusing these conditions because they don’t want to work. It’s because we cannot comply with our professional responsibility; when this happens, we have to let you know that we can’t continue in the current conditions and decline the work.

Attorneys need to understand two things. First, there is absolutely no reason for remote interpreting to be this ineffective. As I read through the “make-shift solutions” a defense attorney cited, I asked myself why on earth is it being done this way when there are plenty of acceptable solutions already in existence? The jails and prisons in my home state of Alabama, which is not exactly known for being at the cutting edge of technology or social progress nor for having deep pockets, seem to have figured out how to get an appropriate set up. Between Zoom, WebEx, interpreter/attorney prep sessions, and good ole fashioned 3-way calls, I have had close to no problems providing interpreting services to inmates remotely. Sessions are a bit slower because we’re working remotely, but attorneys and their clients still manage to get in a full session and I feel satisfied with the level of service I provided. These sessions also include going over paperwork, like plea bargains or pre-sentencing reports. Sometimes, the attorney will share the document on their screen in a session. Other times, they’ll send me a copy of the document to be either returned or destroyed after the meeting. And some will go over the document with me in a pre-session so I can have terminology prepared ahead of time. Each jail and attorney’s office have their own system, but so far it seems that the jails have provided the resources needed in order to interpret successfully without risking the attorney or interpreter’s health. I will concede that quality still varies a little, but so far everyone is doing what they need to for me to be able to uphold my oath and professional responsibility as an interpreter.

Second, and most importantly, the freelance interpreter is just one side of the equation and has very limited power in shaping the system the state chooses to adopt for remote interpreting. All a freelancer can do is tell the state, “I have all of my equipment, am now familiar with the platforms, and am ready to go.” It is up to state and local governments to make sure that courthouses, prisons, jails, and any other court facility have the proper equipment and conditions in place to make remote interpreting successful. Believe me, if it were up to freelancers, we would always be included in the conversation. Unfortunately, that’s not the case. Rarely are freelancers, as the professionals in the field, asked what they need in order to do their job even though we do have existing solutions. If freelancers were asked, we would immediately shut down holding up a cellphone to thick plexiglass in a room with poor acoustics.

I spoke to my friends and colleagues in Washington, and every single one of them is ready to work with the courts to get the proper set up in place. Washington State need only ask for this. But as is the case in other states, freelance interpreters are rarely given a seat at the table to shape policy and procedure. When we try, we’re usually shut down because, as the interpreter coordinator cited in the article stated, our profession is seen as a mere “side-gig”. As a whole, we are constantly trying to get recognition as working professionals, not gig economy workers. Contrary to the interpreter coordinator’s comments, we actually do this work full time; our respective state courts are just one of our clients. Right now, Washington appears to be acting like a bad client for their interpreters. The bottom line is that, as freelance professionals, all we can do is look at the working conditions any prospective client may offer us and weigh the risks. If they outweigh the benefits, then we have no other option than to decline the offer. As long as our client, the state courts, refuses to consult its interpreters and make the necessary changes, it shouldn’t surprise anyone that we’ll keep turning down the work.

As an attorney who used to work on the other side of the equation, I sympathize with how the pandemic has upended defendants’ constitutional rights. It’s, quite frankly, disgusting and infuriating that the administrative office of courts in many states have really dropped the ball in terms of language access. I support any action to hold the courts accountable for their lack of consideration that has resulted in a violation of rights. However, suing to get judges to order freelance interpreters to take on work they’ve declined due to dangerous working conditions is not the answer. I’ll even go so far as to say that suing to get judges to order staff interpreters to work in jails also isn’t the solution. It’s not only disrespectful to our profession, it’s a completely baseless request. All this will do is infuriate court interpreters and make them even more reluctant to keep the courthouses as clients, even after the pandemic is over.

Mischaracterizing professionally interpreted legal proceedings as “lost or fragmented” communication based off of a “simulation” also doesn’t help. When done by a trained certified court interpreter, an interpretation is smooth, complete, and pleasant to hear. Yes, there are small aspects that do get lost in translation; that is just the nature of cross-lingual communication. And yes, remote interpreting does complicate things. In past posts I’ve even emphasized how once we’re out of the pandemic, we need to make sure interpreting in person goes back to being the norm. However, we are in an exceptional situation where being there in person is not possible.

Rest assured that certified court interpreters make sure that as little as possible is lost in translation. They cannot pass a certification test if they can’t do this. They work very hard to continue improving their renditions and make sure that they are using the best terminology so that the exact idea being expressed is communicated to the LEP. While I understand how relying on an interpreter in court proceedings can be scary for both the attorney and the LEP client, you must trust certified interpreters to do their job. I understand that this aspect is out of your control, but I promise you that we want to do the best professional quality job possible.

Court interpreters are not the enemy. As professionals, all we want to do is provide faithful and accurate interpretations so that any Limited English Proficiency Speaker going through our justice system can access it as equally as English speakers. We also want the justice system to move as efficiently as possible. Remember: when we can’t accept a state assignment, that also affects our livelihoods. Interpreting is not a “side gig”; it’s our career. However, we also do not want to get COVID-19, risking our lives and those of our loved ones.

Attorneys, the solution to your problems isn’t trying to force an interpreter to work in person against their will; nor is it lamenting perceived interpreters’ reluctance to risk their wellbeing. You have the power to demand that the state consult with its freelance professionals to make sure the proper set-up is in place so that interpreters can start taking these assignments.

Much like this article, the professional freelance court interpreter’s voice is nowhere to be found. The spokesperson of the King County Department of Adult & Juvenile Detention is quoted as saying, “Going forward, we’ll continue to work with public defenders, the courts, and other criminal justice partners to ensure that people in our temporary custody have their rightful access to legal counsel and interpreter services, given the considerable constraints and health concerns we face during the COVID 19 pandemic.” Demand that the state makes their freelance court interpreters a part of that conversation, as they will be your best ally for professional, competent remote interpreting solutions.

Note: Our staff interpreter colleagues in many states also face these problem and are often left out of the conversation when it comes to remote interpreting protocol during the pandemic. Courts everywhere will benefit from consulting both staff and freelance interpreters. They are the only experts that will understand what successful remote court interpreting entails.

Beware the Wolf in Sheep’s Clothing

“We are not the ‘gig economy’ workers AB5 is designed to protect, but rather highly trained and skilled professionals with established professional standards to adequately perform our work. We have been working as independent contractors in our industry for 50+ years.” – From a Change.org Petition “supporting AB5 with an exemption for interpreters and translators”

Today I’m delving into the reaction to California’s AB5 and the issues this has brought to light.

First, some caveats. I do not live or work in California. I’m all the way on the other side of the country in Alabama. However, landmark decisions in bigger states have a way of trickling down to smaller states. Thus, while I have no direct stake in the game, I know that what is decided in California will impact other states.

Second, this post will not be discussing the merits of the bill. There’re plenty that has already been said. My interest has been in the reaction to the bill, as it brings to light some important issues that plague our profession.

Finally, I am a freelance interpreter who is extremely frustrated and unhappy with the current state of freelancing, especially for interpreters who “only” hold state court and/or CHI/CMI certification. Because of my experiences, I have made the professional decision of not working for agencies. I am not presenting a neutral view on the reaction to AB5.

Okay, that’s out of the way. Why on earth am I concerned with AB5?

For those interpreters not active in the online forums, AB5, briefly summed up, is a new bill that seeks to require employers to meet the ABC Test for their independent contractors to be lawfully classified as such. Basically, this further specifies who is considered an independent contractor and who isn’t. This effort is being done to protect individuals who work certain types of jobs in the “gig” economy. Right now, there are exceptions for certain professions like doctors, lawyers, insurance agents, and hair dressers.

Certain professional organizations have gotten behind the effort to have interpreters and translators included in this exception. The argument is as follows:

  • Interpreters and Translators are working professionals, not the gig economy workers this bill seeks to regulate.
  • The language services industry is naturally built on and prefers an independent contractor model.
  • Thus, not having an exception will hurt interpreters and translators who want to work as independent contractors by forcing them into an employee/employer role with the agencies for which they work.

On paper, this argument seems logical. However, when you begin to analyze it and its messengers, it begins to fall apart.

1. Interpreters and Translators are working professionals, not gig economy workers and don’t need this protection.

Of course I agree with this statement! We are very much a profession that is just beginning to earn the respect and recognition we deserve. Interpretation and translation is in an interesting position, as we are one of the oldest professions and newest professions out there. We have been here since the dawn of civilization and we’re not going anywhere anytime soon, no matter how much Silicon Valley wants you to think so. The majority of us are highly educated and have worked extremely hard to achieve the true bilingualism, training, certification, and continuing education needed in order to provide, at bare minimum, competent services.

Unfortunately, the majority of the world is still catching up to the fact that not everyone who knows a foreign language is qualified to work as an interpreter or translator. There’s the assumption that any Tom, Dick, or Harry that calls themselves bilingual can work as a language service provider. This misconception has permitted us to be treated as “gig economy” workers, especially in the private sector.

This is why I became very suspicious that agencies as a whole were using this argument to get an exemption. Their words were not aligning with their historic treatment of interpreters.

Case in point, raise your hand if this has been your general experience with agencies:

  • An agency emails or calls you with the following message: “Dear Interpreter. I found your information in [insert professional organization]’s directory and need an interpreter for an assignment in your area on X date. Please provide your rate.”
  • You answer back wanting to know more about the project, including basic information that every provider needs to make sure that this is an assignment that they can and should take on. You also clarify that you won’t be providing any sort of quote until they provide these details.
  • Most of the time, you’ll get radio silence. Sometimes, the agency will give you some or all of the details you’ve asked for, so now you can provide a quote of your Professional Fee for this assignment. (Colleagues, if you’re not in the habit now, PLEASE start using this phrase in place of “rate”. We’re professionals, so let’s use the terms that signal to prospective clients and agencies that we are cognizant of our value.)
  • You prepare a quote of a professional fee and, depending on the assignment, request the presence of another interpreter in order to do team interpreting to avoid interpreter fatigue and compromise the quality of the interpretation. You also let the agency know what information you’ll need ahead of the assignment to prepare terminology, etc.
  • The response 99% of the time: Your fee is too expensive (it’s not — you know this because your private clients have never had a problem with what you charge) and their client is not willing to pay for a second interpreter (Did they even ask? Probably not.), so could you please do the 6 hour deposition at half your normal “rate”, by yourself, and also consider eliminating basic things like mileage and travel time compensation so the agency can stay competitive? Oh and also, do you mind a 2 hour notice cancellation policy, because clients hate the idea of something “so demanding” as a 24 hour minimum cancellation notice? Also, the client is not willing to give you the necessary information to prep and we’re not willing to give you their contact information more than 24 hours ahead of the assignment, so none of this will be possible. Thanks!
  • You respectfully decline the assignment. They email back asking if you can recommend anyone else. You know that your other certified colleagues also charge similar fees and demand minimum acceptable working conditions, so instead you refer the agency to the state registry and wish the agency luck in finding someone.
  • 2 hours later, another agency contacts you about the same assignment, but proposes paying you even less with worse working conditions.
  • 2 hours after that, yet another agency contacts you about the same assignment, but for even less pay in order to stay “competitive”. This keeps happening until they finally find an interpreter (more than likely, someone either new to the field or not certified) that caves to their demands.

Colleagues, do you see the problem here? The very people claiming to fight for an exemption in order to promote our professionalization are the very same who contribute to demeaning working conditions, keeping clients ignorant, and turning to paraprofessionals in order to turn a profit.

Now, I can already hear an agency owner typing up their #NotAllAgencies reply. I’m sure there are some great, ethical agencies out there who walk the walk when it comes to treating us as professionals. However, you cannot deny that they are few and far between, and that the current model of language services encourages the proliferation of the worst offenders and practices, as well as a market that favors the agency over the interpreter/translator.

It seems to me that for certain special interest groups, be they large or small, we should only be considered professionals whenever it benefits them, not us.

2. The language services industry is naturally built on and prefers an independent contractor model.

I’m going to respectfully disagree with this argument. On the contrary, I believe we have room and are in need of agencies/firms/professional groups etc. who employ, staff, train, and provide professional development to their interpreters and translators in a more traditional employer/employee role.

After becoming freshly state certified, I started looking into how I could get work. While I knew that many language providers work on the independent contractor model, I assumed there would also be more traditional work places that actually staffed their talent. When I heard “agency” I thought it was more “Mad Men” and less “temp”. That is to say, offices would have several of their language providers on staff and, from time to time, also contract with vetted solo providers to fulfill the needs of their clients. The interpreters and translators would have both a direct relationship to the clients and with the agencies that either employed or hired them.

This is not the current state of affairs. Instead, the current independent contractor model has contributed to predatory behaviors, a devaluing of interpreters and translators, and an ever growing vacuum of professional development.

To be an independent contractor or in private practice should mean that you’re gaining something that you can’t get as a traditional employee. This is where people say that being a contractor is so great because we get flexibility!

Yes, time and work flexibility are amazing. But they cannot be the only benefits. Right now, we are sacrificing a lot in exchange for so called “flexibility”.

I know there are other arguments made in favor of the current model, but those also fall apart when you take a closer look.

“You won’t have to deal with negotiating with clients or any of that boring admin stuff!” Fair point. I hate the administrative part of my business. However, I have come to love dealing directly with clients because it gives me an opportunity to educate them about our profession and help spread understanding and appreciation for interpreters and translators. The more they know about my work, the more they respect me and the more likely it is that I’ve made an ally that can spread what they’ve learn to others outside of our industry. I let my clients know what they should expect from a true professional so, even if they decide not to hire me, they know what to look for in their next interpreter.

“You get to be your own boss!” Ah, I guess you do, but really only when you have your own private clients. In the current contractor-agency model, the agency is still your boss and holds the majority of the bargaining power when it comes to assignments.

Think of all of the things most agencies tell you you can’t do: you can’t contact the client directly or give them your contact details, even if the agency is on the other side of the country and the client is thrilled that they’ve found a local professional interpreter/translator. You can’t really set your fees, because agencies will always favor those workers that undervalue their work; it allows them to turn a profit. You can’t really set the terms of your working conditions. You can’t directly talk to the client in order to explain why certain working conditions and fees are necessary in order to provide top quality work. You can’t ever get real feedback on your work from a fellow professional because no one ever goes in with you to evaluate and debrief the assignment, limiting your ability to develop as a professional.

Not to mention one of the most important elements, you can’t maintain awareness about current interpreter/translator salaries and compensation, because you have no idea who the other interpreters are that also work for these agencies. One of the most important reasons I rarely budge on my fees is because my in-state certified colleagues and I are very transparent with one another on what we charge. We also consult each other when certain projects or scenarios come up. Promoting salary transparency is hard enough to do amongst employees. It’s close to impossible with agencies that hire independent contractors nation wide.

Frankly, it seems like the model so “desired” by the profession puts more limitations on interpreters and translators than it gives freedom.

What do I mean when I say that the benefits of going into private practice need to outweigh the salary, benefits, and security of a traditional employee position?

I have an example from my personal life on how amazing private practice that incorporates contract work can be. My parents are both mental health providers, a psychiatrist and clinical psychologist. (Insert joke about my upbringing here). They both worked as employees before going into private practice. Why have they never turned back, despite still getting tempting offers of cushy salaries, benefits, and security? Because ultimately, the benefits of being an autonomous worker in private practice far outweigh those of staff positions.

Even though there is some extra work involved, ultimately they’re able to have both the flexibility, professional development, AND a salary that is comparable to their value as professionals. They also have the freedom to negotiate their own terms when it comes to the patients they take on, treatment plans, and the contracts they have with local clinics, hospitals, and other public and private agencies.

And guess what? They are still able to contract AND reap the benefits of being incorporated.

I mention “incorporating” because I’ve seen language out there that this bill would “force” independent contractors to incorporate. On the contrary, if you’re working privately, please take the time to research the steps to incorporate and whether it can benefit you! It’s really not that hard to form a corporation. Anyone can do it and there are guides everywhere on how to do so. And guess what? You can still contract with other businesses as a corporation.

Private practice should be about having your cake and eating it too, not about having “flexibility” to the detriment of your professional worth. You can’t enjoy being your own boss if you’re not earning the salary you deserve, having the power to demand the conditions you need, or being respected as a professional.

Now, I can acknowledge why some providers would rather work as independent contractors. When done right, private practice can be amazing! But:

  1. We should not conflate the concept of “private practice” with “100% independent contractor work”. They are not the same thing. You can absolutely have a model where you have your own business and do a mix of work that includes contracting directly with the client, the courts, and with other service providers.
  2. We need to ask ourselves, why are people arguing that interpreting and translating “favor” the current model?

Upon reflection, while the independent contractor model should have a place in the world of interpreting and translating, it seems that only certain actors benefit from the status quo.

3. Not having an exception will hurt interpreters and translators who want to work as independent contractors by forcing them into an employee/employer role with the agencies for which they work.

Listen, I’m all here for the American entrepreneurial spirit. There’s no denying that the independent worker is an important part of our identity. And again, I agree that forcing out all independent contractors from interpreting or translating is not the way to go.

However, we have to look at who has “so valiantly” stepped up to the plate to fight for us, the little guys. As I look at who have been most vocal, I can’t help but come to the conclusion that if you read between the lines, you’ll find that the real argument here is “Not having an exception will hurt my business because I can no longer benefit from the independent contractor model when really what I should have in place should be a mix of ICs and employees.”

Consider the following: who would be immediately impacted if AB5 were to pass?

  • Courts would ultimately rework the budget to hire certified staff interpreters to comply with the laws and rework their system to send their employees to smaller courts as a part of the job description. They will also probably be allowed to hire contract interpreters on an as-needed basis because their principle business purpose is not in providing professional language services.
  • Hospitals are also fine. They’ll also find a way to keep a staff. And because their main business is not providing language services, they’ll be free to contract with those in private practice. So will smaller clinics.
  • Schools will also be okay for similar reasons.
  • Other industries will also be fine because they’ll be able to contract directly with interpreters and translators.
  • Ultimately, individual providers would be able to benefit because prospective clients would be able to contact them directly.

So who does this leave? Agencies! This law is terrible for them, because unless they’re a business that staffs the majority of their interpreters and translators, they’ll immediately crumble under the ABC test. They’ll no longer be able to stay in business as dispatch centers for language services.

This is why I’m greatly concerned by the way independent interpreters and translators have been quick to sign onto petitions, letters, and other means of communication using language drafted by larger actors in the private sector. What I see is an instinct to sign on to these statements out of pure fear that all private sector work for interpreters and translators will dry up because the system is so reliant on agencies to connect interpreters/translators with client needs. Instead, I encourage all of my colleagues to take a moment to step back and do an in-depth reflection on who serves to benefit from AB5 and who benefits from an exemption.

Also take this moment to ask yourself: Who is feeding the narrative that the private sector’s ability to function is dependent on the existence of the current contractor-agency model?

A word about the response of professional organizations…

I am incredibly disappointed by how quickly professional organizations have back an AB5 exemption without inviting their members, the individual interpreters and translators, to the table to have an honest conversation about what this law is proposing.

I would have loved to have seen an open referendum from the different organizations where they outlined objectively the language and terms of the bill proposed. Then, they could have had people present pro and con arguments. Finally, after being well informed about the bill and different positions on it, the organization could have asked for the thoughts, opinions, and concerns of its members. It could then use that feedback to open up a dialogue with the legislators about how this bill would impact everyone in our industry, not just select actors.

This would have been the perfect opportunity to finally say, “Alright, maybe AB5 isn’t the right path for our profession, but it does bring up some important issues that we have yet to address.” We could have finally started to have the crucial dialogue that needs to take place if we do want to be seen as legitimate professionals, both in and out of our profession.

Instead, what we got was an almost immediate embrace of the “No” position with almost no requests for input from the individual members who pay dues and support professional organizations. There’s no need to fight for the agencies — they have their own lobbyists. But there is no interpreter or translator’s union or lobby to fight for the interest of the individual professional on a national scale. The best we have is our professional organizations to be a collective voice for us when our individual voices are drowned out by special interests.

I’m not asking organizations like NAJIT or the ATA to take a certain position. In fact, I would rather if they didn’t. I’m just asking them to use their power to listen to their members in good faith and use their platform to uplift our voices and perspectives to the legislators.

So where do I fall on AB5?

Ultimately, do I believe there should be an exemption built in for interpreters and translators? I’m not sure. While I support a bill that would finally force agencies to take on employees, I also believe that, like physicians and other professionals, we absolutely should have the choice to work as independent contractors.

The word choice is crucial. Having a system that forces the majority of us in the private sector into independent contractor roles with little bargaining power is just as bad as a system that forces us to work under a strict employee definition.

I believe a bill like AB5 could be a good starting point to get worker protections in place and allow us to finally reform the private sector system. However, we will need to take more steps to address the nuances of our profession. I do not believe that the language in AB5 would prevent us from making those necessary adaptations.

I also can’t help but lament the fact that this was a huge missed opportunity to finally have an open and honest discussion about the current state of our profession.

To those that want to submit their opinion to the legislators, I encourage you to write your own letter in place of the form letter created by individuals and organizations with special interests. Voice your opinion on AB5 and avoid putting the words of special interests in your mouths. Using their words may come back to bite professional interpreters and translators in the future when we’re finally ready to fight for the changes our industry needs.