AIJIC is asking legislators for court interpreters to be exempted from AB5 for the following reasons:
- A key component when determining whether someone can continue operating as an independent is the “ABC test” adopted by the California Supreme Court in the 2018 Dynamex ruling which AB5 attempts to codify. According to the test, workers must be treated as employees, not independent contractors, if their jobs are central to a company’s core business. Pursuant to this reasoning, interpreters would continue to be an independent contractor if hired by a law firm or the courts, but if they’re providing services for an interpretation agency, then they would become employees. This is not to be taken lightly when considering that many freelance interpreters’ earnings come from their work through interpretation agencies.
- AB5 will force interpreting agencies to pay the interpreters they occasionally hire in California with a W2 form, which will increase their cost of doing business mainly due to unemployment and Workers Comp insurance. It’s no surprise that several out of state agencies have already decided to no longer hire interpreters and translators from California. By getting paid with a W2 form, interpreters will also lose many of the business tax deductions that are allowed when operating as independent contractors. The business to business provision in AB5, although hailed by many as the solution, does not help us either since it requires the business to provide the service to the hiring entity and not the entity’s clients. Eventually, AB5 could undermine interpreters’ ability to continue earning a decent income to the point where many of them might decide to leave the profession or move to other states where being an independent contractor has not been outlawed.
- It is unlikely that the “benefits” of being an “employee” would ever be collectible. For example, if an interpreter has 35 clients and suffers vocal cord damage as a repetitive injury for her voice usage, would a claim by her against those 35 clients prevail? Most likely, each client would argue as their defense that the work that was done for them was minimal and thus could not have resulted in the injury. Unemployment insurance for an interpreter also would not apply if the interpreter gets a new “job” from another company soon after being “laid off.” Agencies would not be required to offer medical insurance or other benefits.
- We commonly network with one another. One day, interpreter A might subcontract interpreter E to work with her at a conference for one of her clients. On another day, interpreter E might subcontract interpreter A to translate a document for one of her clients. That would create an unreasonable situation where they would both be employers and employees of one another.
- Sponsored by the California Labor Federation (CLF) and introduced in the legislature by Assemblywoman Lorena Gonzalez (D-San Diego), AB5 has been hailed by its supporters as the solution for workers misclassified as independent contractors in the new multibillion-dollar gig economy. There’s no question that some companies misclassify their workers as independent contractors. These workers work for the same company every day, and yet receive none of the benefits that an employee who gets paid with a W2 form gets, such as unemployment benefits in case of a layoff or Workers Comp insurance in case of an industrial injury. That’s wrong. But while AB5 might be what certain workers need, it is definitely not a solution for all. Gonzalez herself has acknowledged this reality by exempting certain professions such as doctors, lawyers, architects, engineers, accountants, insurance agents, realtors, hairstylists, freelance journalists and financial brokers among others. During a hearing in April 2019 in the Assembly, she explained the rationale behind those exempted professions, namely that “they have the ability to negotiate and set their own rates,” and a salary that is “at least twice the minimum wage.” Gonzalez might have been clueless at the time about the many more occupations that meet that criteria and that as such, should also be exempted. Freelance court interpreters are among them.
- From June to August 2019, we met four times with Ms. Gonzalez’s legislative assistant, Shubanghi Dokomos, and explained why an exemption would be more than justified (we would have gladly explained it to Gonzalez as well, but she never met with us). We also reached out to Caitlin Vega and Michael Young, legislative advocates with the CLF, after Ms. Dokomos told us that we would be added to the exemptions if we managed to garner support from the CLF. They refused to even meet with us. On January 28, 2020 our colleague Michele Stevens met with Gonzalez. Michele, who did an amazing job of gathering almost 12,000 signatures for her online petition calling for an exemption for interpreters and translators, conveyed to Gonzalez why AB5 hurts us and why the law’s business to business provision, which Gonzalez has repeatedly (and mistakenly) hailed as the solution for us, doesn’t help us. The meeting was crucial and no doubt opened Gonzalez’s eyes to the reasons why an exemption for our profession is more than warranted, but we should keep fighting to convince other legislators as well.
- Although several Republican lawmakers have introduced a bill to exempt interpreters and translators, it is unlikely that Democrats, who hold a supermajority in the California legislature, will support such a bill. We do not believe that Republican efforts to repeal AB5 will go anywhere either because of the same reason. This could change if Republicans were to regain majority in the California legislature in the November 2020 election, but such an outcome is uncertain and might also not materialize due to the consistent support that Democrats have traditionally had in California.
- Truckers, freelance journalists and Uber/Postmaster have filed legal challenges against AB5, and although AIJIC has explored a lawsuit as well, the lawyers representing two of the above have advised us that just the initial stage (i.e., to request an injunction) would run between $200,000 and $400,000. We repeat, this would just be the initial stage, and the final tab after all the case proceedings have been exhausted would be easily in excess of a million dollars. Needless to say, litigation is out of the question for us.
Many other legitimate independent contractors in California are in the same situation and just like freelance court interpreters, continue to lobby to get exempted.