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 over 50% of most 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. For the ones that have not yet taken this drastic action, it remains to be seen whether they will pass those higher costs along to their clients or to the interpreters they work with, but experience shows that businesses inevitably do everything possible to avoid losing a client. In other words, most likely interpreters will have to fight to keep their rates at their current levels, and the idea of increasing them to keep up with the cost of living will be unthinkable for years to come. 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.
Many other legitimate independent contractors in California are in the same situation and just like freelance court interpreters, continue to lobby to get exempted.