Report from California – AB 5

By Lorena Ortiz Schneider

 

What is AB 5 and why does it exist?

Assembly Bill 5 (AB 5) was authored by Assembly member Lorena Gonzalez, D-San Diego and enacted on January 1, 2020. This bill sought to codify, even as it expanded, the State Supreme Court Dynamex decision of 2018, a wage order claims decision.

In Dynamex, the State Supreme Court changed California’s long-standing, multi-factor test by which employees are distinguished from independent contractors to a simpler one, requiring hiring entities to classify all workers as employees unless they demonstrate that the person:

A)  Is free from the control and direction of the hiring entity in connection with the performance of the work,

B)   Performs work that is outside the usual course of the hiring entity’s business, and

C)  Is customarily engaged in an independently established trade, occupation, or business.

AB 5 was aimed to curb very real abuses by employers like Dynamex, who fired all of its employees, then hired them back as independent contractors in order to save on contributions such as Social Security and unemployment, thereby shifting the burden onto workers and stripping them of protections and benefits under the law.

AB 5, however,  is premised on the fact that businesses classify workers as independent contractors because it is in their interest to do so, not because workers prefer to be independent contractors. Because too few state lawmakers were familiar with the way that interpreters do their work, the version of AB 5 that passed the legislature and was signed into law shows no understanding of the interpreting profession, which is predominantly made up of independent contractors. Lawmakers also ignored court rulings as recent as July 2019^[1] that explicitly recognize and validate interpreters’ autonomy. The interpreting profession, as well as other independent language professions such as translators, not only make significant contributions to the economy and society in general, they are also predominantly composed of small businesses built with great ingenuity and sacrifice by highly skilled women, people of color, and immigrants. The passing of AB 5 essentially turned a blind eye to public policies that support women, people of color, and immigrants.

Adding to the disruption to our profession is that the author carved out exemptions from the application of AB 5 for occupations with a constant lobby presence in Sacramento, such as attorneys, stock brokers and doctors. In subsequent iterations of the bill, other groups, such as repossession agents, dog walkers and picture hangers, were granted exemptions. And, at the 11th hour, journalists received a partial exemption, limiting their submissions to 35 times per year to the same media outlet.

Interpreters however, did not receive an exemption.

How is AB 5 affecting freelance interpreters?

Interpreters are seeing the long-standing flexibility, work-life balance and variety that working as independent contractors has afforded them, negatively impacted by the unintended consequences of AB 5. Their ability to accept projects of their choosing, at times that work for their schedules, and for the pay they agree to, has been threatened by this law.

This is because language companies, fearful of not being in compliance with the new requirements, are either ceasing to work with California interpreters or requiring them to incorporate with the hope that they will be shielded by the Business-to Business (B2B) subdivision of the law. Already this year, some colleagues have indicated a 30-40% decrease in projects from their most trusted language companies.

With the interpreting profession in rapid growth, many interpreters in California are at the helm of their small businesses. As an example, the “B” prong in AB 5 prevents a solo practitioner, who wishes to contract her boothmate for a conference, from contracting her as a freelancer. Instead, the interpreter with the direct client is now forced to “hire” her colleague as an employee, even for just a single instance. The same is true for language companies. Given that interpreters customarily freelance for agencies who provide interpreting services (thus performing the same type of work as the hiring entity), unless the agency converts the freelancers into employees, they will not be in compliance with the current law. Readers may relate to how impracticable being hired as an employee might be, given the myriad of language combinations, different specializations, geographical locations, skills required, etc.

What is being done to correct this situation

An ad-hoc group of interpreters and translators concerned with the situation came together last summer and attempted to obtain an exemption from the author and the California Federation of Labor, sponsors of the bill. That effort ultimately failed, and given the absence of an advocacy program, the Coalition of Practicing Translators and Interpreters of California (CoPTIC) was born.  As the name suggests, CoPTIC was formed by a group of practicing professional interpreters and translators in the state of California concerned with defending the independence of language professionals. The group includes court, administrative hearing, and medical certified interpreters; conference and community interpreters; translation and interpretation educators and trainers; certified translators, voice over talent, and language transcribers. It was formed as a 501(c)(4) non-profit, which has the ability to spend unlimited amounts on advocacy and lobbying.

The Coalition is actively encouraging its supporters to engage in constituent-driven advocacy. This simply means encouraging all interpreters who are concerned with their livelihood and how this law impacts the people they serve, to visit their lawmakers and explain why AB 5 has misclassified them. In so doing, it has become apparent how little lawmakers understand our profession. Thanks to the efforts of the Coalition, which has been in operation for a little over 6 months, all lawmakers in the state have heard from interpreters, and the light bulbs have started to go on.

To learn more about CoPTIC please visit the website: https://coalitionptic.org

Is there any hope for a fix?

ABSOLUTELY! Our California colleagues’ joint efforts are bearing fruit. In February, the Coalition was successful in getting spot legislation introduced to protect interpreters throughout the state. This was only possible due to the relationships that constituents were able to build with their legislators.

The draft legislation, Senate Bill 900 authored by Senator Jerry Hill (D-13), was made public late last month. It is a good start, providing a set of conditions, including interpreter credentials, that will allow freelancers to remain independent. It still needs to be perfected so that it more accurately reflects the standards that govern our profession. The Coalition has been working closely with the author of the bill, answering questions about what interpreters do and how they do it, in order to successfully fill the information void that will ultimately accomplish the goal of a full exemption.

I am not in California. Should I be concerned?

As the saying goes: When California sneezes the rest of the country catches a cold. Similar laws are propagating throughout the US, and even at the federal level, to protect exploited workers. By winning an exemption from AB 5 for California interpreters, colleagues in other states will have a precedent for their own exemptions, which in turn will result in an easier path towards legislation that permits professional interpreters to continue operating according to the business needs of their profession.

[1] Interpreters Unlimited Inc. v. Employment Development Department, CUIAB Case 5800477 (T) (2019)

 

-Lorena Ortiz-Schneider is the Assistant Administrator of the ATA Interpreters Division

Image of the author next to the grizzly bear statue at the California Capitol State Building kindly provided by the author.
2020-05-04: Edited to add a reference for the July 2019 court ruling mentioned in the post and to reflect another minor edit.