Subject to Interpretation

Esther M. Hermida on the AB5 Legislation and Lobbying vs Advocacy [51]

May 21, 2021 DE LA MORA Institute Season 2 Episode 51
Subject to Interpretation
Esther M. Hermida on the AB5 Legislation and Lobbying vs Advocacy [51]
Show Notes Transcript

'Subject To Interpretation' is a weekly podcast that deep dives into the topics that matter to interpreters.🎙 Hosted by Maria Ceballos Wallis

This week we speak with Esther M. Hermida about the AB5 Legislation

Esther M. Hermida is a freelance certified Spanish interpreter. She is certified by the state of California and the US District Court (federal court). She has over 27 years of experience in different areas of interpreting including, legal, corporate, conferences, simulcast, dialect coaching, language consultant, script translations, and voice-over. She founded her own company, GeoLingua, Inc. 

 

Esther is an advocate of the profession and believes that we all have a responsibility to protect and improve our profession. She’s active in professional forums, and mentors many newly certified interpreters.  

Speaker 1:

Welcome to subject to interpretation, a podcast, which takes us deep into the topics that matter to professional interpreters. I'm your host, Maria. Welcome today. We're going to talk about how California language professionals got caught in the net of a new law meant to protect misclassified workers in the gig economy. I'm talking about a B five assembly bill five, which was a blanket legislation intended to correct what some viewed as improperly classified independent contractors. Our guest today is EDK . She's a state and federally certified Spanish court interpreter, and a vocal advocate against a AB five also. Now president of ADI , the American Alliance of professional translators and interpreters. Esther, welcome on to subject to interpretation.

Speaker 2:

Thank you for having me. It's a pleasure.

Speaker 1:

Well, it's great to have you here. And this is an extremely complicated and complex topic. So we are going to do our best today. In the short time we have to do it justice. The way I understand it , being a language professional, myself, interpreters and translators work as language service professionals. And in that work, they are sometimes staff freelancers. They work directly for clients or through language service companies. They may own their own agency or as some like to call 'em micro agency and they may do all or just some of those things that I've just mentioned. Tell me how AB five AF well, first of all, let's start by you telling me what AB five is, what it was intended to do and how interpreters got caught in the middle of this.

Speaker 2:

Okay . So AB five was , uh , created because of the Supreme court decision, the dynamics , uh , decision. It was a class action suit from a delivery , uh , drivers that decided to Sue their trucking company. This was a class action suit that went to the Supreme court and the court decided that they were indeed , uh , employees of the company and not independent contractors. What's so interesting about that lawsuit is that every class member work exclusively for dynamics, they didn't work for anybody else. In fact, they excluded those who worked for other companies, but because it was an important decision, in fact, a landmark decision because they dismissed the Barre case. The one that typically were , was being used as a case law to prove what an independent contractor is and what an employee is. So they came up with , uh , three, the ABC test. And so the intent of Lorena Gonzalez , which is assembly woman from San Diego, was to codify the Supreme court's ion and protect all MIS um, the gig economy, misclassified workers, by giving them the protections , uh , entitled , uh , of employees, benefits, vacation, pay insurance, and so forth. So that was the intent. However , um, we realized that they created this blanket , uh , law that caught everyone by surprise and it included professionals. And because we worked for multiple companies, we worked with direct clients, as you said earlier , uh , we were affected by that. And I think it was an unintended consequence, something we needed to correct.

Speaker 1:

So let's talk about this test that was created as a result of the dynamic dynamics , uh , operations west case versus the Supreme court of California. The ABC test required that each worker who is not an ind , that it basically said that a worker is considered an employee and not an independent contractor, unless the hiring entity Sal satisfies all of the following conditions. Can you talk about these three conditions?

Speaker 2:

Exactly. The burden falls on the employer to decide that that worker is an employee. Most likely the Supreme court started from the point that that worker is an employee. It's up to the employer to prove that that worker is not an employee, but an independent contractor for us as interpreters, you know, the ABC test, we meet the portion. A, that means that the worker has the control and direction , uh , to perform the work as interpreters. We know what we're doing. We're highly qualified, the employ the agency that hires us. Doesn't really need to tell us what to do. We're trained to do that. And in fact, that's why they contract with us. Part B requires that the worker has to perform work that is outside the usual course of the hiring entity's business. That's the problem. That's the part B part C is that the worker engages in independently established trade occupation or business , um, of the same nature of the work perform. So that's not even an issue for us because we qualify . That's what we do. We interpret. And or we translate the part that the , the worker must the kind of work that you do does not in order to be an independent, does not ha cannot be the same as the one that the employer does in this case, a language service company employs or contracts, rather with interpreters and translators. If you take that away from them, they have nothing left unless they have staff employees that can cover those jobs. The nature of our industry or our field is that we go where the need is. And that's what agencies take advantage of. They have the context, they have the contracts to contract the perfect interpreter or translator for a given job.

Speaker 1:

So Esther, as I understand it , you took the social media pretty early in the game to sound the alarm. Uh, also a number of different individuals and groups took up the cause in various venues in California, including the legislature through lobbying. Tell us what drew your attention to this. Initially,

Speaker 2:

You know, I ran into a video , um, that had to do with the language service companies and they were talking to , uh , somebody from the chamber of commerce out of Washington, DC . And they were discussing a law in California that affected independent contractors. And I'm listening to this and say , wait a minute , uh , we haven't heard anything about it. This affects us. We're the interpreters and the translators working for these agencies. And we don't know anything about it. So I read the log , I read the , uh , dynamics or dynamics , uh , case. I went to social media in June very the first week of June, 2019. And I posted it in one of the groups for translators and interpreters, mostly court interpreters that post stayed there for two weeks. Nobody paid any attention in the interim. I was contacting my associations to let them know what was going on. Nobody knew nobody. At least they did not acknowledge that they knew, but the honest truth was that I started an email contacting, trying to get as many people in that email as possible to let them know what was happening. So it took about two to three weeks for people to realize how we were being affected. However, a local association was really , uh , quickly trying to organized , uh , Madeline Rios was the person the , I think , I believe the first or second person that knew about this, she quickly contacted the legislator , uh , Lorena Gonzalez to write letters to her and explaining what her position was. So it was, it was a co concerted effort by everyone , uh , that decided, but these were individuals. It wasn't even organizations, not yet , uh , came into , you know, because the precedent lives in California, she realized how it could affect independent contractors, AIC , which is the association for independent court interpreters , uh , quickly jumped in. Um , Coptic was created in a few months later after all of those efforts. And, but it was , um, we took to social media. We didn't know what to do. We wanted to alert everyone about this , uh , law that was going to affect it was going to change our lives, our livelihood , uh , the way we were working. And it affected me personally, because I've been in this business for 30 years as an independent contractor, I had, I've never been an employee , uh , as a , an interpreter. So I thought, well, what's going to happen to my livelihood. Things will change for me and for my colleagues and , uh , we're tax, we file our tax returns. We pay taxes, we pay to our , our retirement and self-employment taxes. All those things were going to disappear.

Speaker 1:

Now, it's my understanding that some interpreters and , um, language service professionals contacted the legislators in Sacramento to let them know that this, you know, was a concern to them. How were these concerns received?

Speaker 2:

Well, first of all, we did, we needed to do a lot of education because they had no idea what interpreters and translators do. So we needed to start at our home base, contacting our local representatives and let them know, Hey, this is affecting us. Uh , so we did a little bit of education, a lot of interpreters, for instance, you know, we have , um, Michelle Stevens , she's an IE member who quickly contacted IE and , uh , quickly began , uh, educating legislators as to what needed, why it was important to get an exemption. Basically, we wanted a carved out. We, we needed an exemption to continue working. We didn't feel like we fit into that gig economy portion. We didn't, we didn't need protection. Uh, our income is three, four times higher than a , an Uber driver, because in fact, AB five actually aimed in those, the , it was targeted to those , um, Uber drivers , Lyft , uh , door dash , all these , um , economy, the gig economy, but we were caught up, but we were not the only ones over 300 professions who were affected by this. However, the law actually carved out a few exemptions very early on and we wanted to be part of it. So that was our intent. We didn't wanna get rid of the law. We didn't think it was unfair. I mean, that's not our that's, that's not our purview. Ours was to protect our profession.

Speaker 1:

Now in the way that you were trying to protect your profession , um , was there, did you learn a difference between the concept of activism and lobbying when it comes to affecting change in a legislature?

Speaker 2:

Absolutely. Um, there's a , a video that we've recorded not long ago. And , uh , one of the interpreters Vera mentions that he shows up to Sacramento to talk to legislators, and they're saying, well, where's your lobbyist. You know, they're looking around. So we realized that no matter how much advocacy we do, no matter how much we, we try to advocate legislators actually react to lobbyists because they take them more seriously than just a bunch of people showing up and saying, you know, we need this protection. So I don't think advocacy did well. Okay. We did very well at educating our legislators, letting them know we needed everyone, the males , uh , the correspondence, the emails, the calls, all that was very, very important to let our voices be heard. But the reality is that the people of the person actually, who actually helped too two lobbyists actually helped a lot to get to the right people, to talk to the right people and to have us be taken seriously. Also having the support of local communities , uh, or , uh , nonprofits who actually are used to working with legislation actually helped us a lot. Madeline Rios in , uh , got the Pomona democratic club to write a letter in support of interpreters and translators. And one of the things that help , uh , Madeline Rios get all the support for the interpreters is because she, herself volunteers, and a lot of us volunteer with her to help the community interpreting. So they see the value in having independent contractors because we do this without pay. And when you're an employee of a company, it would be hard pressed for anybody to volunteer freely, to do this kind of work that is much needed in the community.

Speaker 1:

So it sounds to me like you were unable to preemptively affect AB five, which was signed and passed into law January 1st, 2020, but then there were modifications that were made in Senate bill 2257, which included exemptions. And these were retroactive. And one of the categories included on this, in this Senate bill, which , um , was made effective September 4th, 2020 were referral agencies. Can you explain?

Speaker 2:

Yes. Um, because of our advocacy and our lobbying , uh , the law changed , uh , they provided an exemption for translators more than foreign interpreters. And we are okay to work with agencies as long as their referral agencies. And they hire certified interpreters in that language combination. We know that not everyone is certified, not everyone needs to be certified for whatever work that they're doing, but the law actually was very, very clear. So the referral agencies basically is business as usual with , uh, something that is very important to all of us working as independent contractors. Um, the government is trying to protect abuse of workers, but in order for us to be able to work with agencies, we need to have a business license to show, yeah, I'm, self-employed, I have my own business. You need to have a website. You need to have business cards, basically that you're in business for yourself. And not only that, that you work for multiple people and you're not working exclusively with one agency, so, and that you have direct clients. So all of these things needed to be met. If there is ever an audit, you know , of our books, and we will not be the ones getting in trouble. Uh , just a point of clarification, you know, the interpreters and translators contract that are not the ones, the targeted, the ones who are really getting punished for this would be the language service companies or the agencies. They can be fined anywhere from 5,000 to $25,000 for violating this. So it behooves them to make sure that we're in, you know, we have a business license if there is one required in our city. In my case, I have an S corporation, but that is not required either. So you can be a self , um , proprietor. You can be self-employed, you can work under your name as long as you have all that's required of a small business in order to work and have , uh , contracting with other agencies.

Speaker 1:

So did , um, Senate bill 2257 , address all of your concerns,

Speaker 2:

Our concerns we're in a better position now than we were when we started with AB five where , uh , it was too , uh , broad. And so we make sure that initially, and to be honest with you , uh, when I first , uh , started fighting this or trying to get an exemption, I thought that we should all get an exemption as professional interpreters and translators. I have since changed my mind because the way the law reads right now, it actually is helpful for the interpreters and translators who are certified accredited with a degree I E uh , people who are professionals basically is protecting us. If we go the other way, we may not have those protections , uh , because there is , they , there wouldn't be a requirement to be certified. And I understand that that's an issue for a lot of people, because there are thousands of bilinguals working as interpreters, without certification , uh , in , in areas where certification is actually required. Now, aging , uh , language companies know this, and they may hire some contract with, I , I should say some of these people, but the ultimate goal of us as interpreters and translators is for everyone that wants to work in a field to get some kind of certification, no matter whether it's medical, whether it's court, whether it's required in the field, you're working in, you should be, it's like going to law school, having a law degree, but you don't pass the bar. You can't practice. And that's our position. I, I, that is my position. I think it's a really good law to protect , uh , our, our, the future of our profession. Basically,

Speaker 1:

I find it interesting that you were mentioning that language , um , service companies were the ones that would really be most affected in the sense that they would be fined and not the practitioners themselves yet. It was the practitioners who took up the battle cry in order to be able to defend their way of work.

Speaker 2:

Well, the it's it's important because we felt affected by it because it appears like we needed protection. When we never did ask to be protected. I have been working for, like I said, close to 30 years, but if you become an employee of a company, think of the things that you lose, you lose your autonomy and interpreters. Um , historically have been autonomous. And we , uh, we will lose our write offs. Uh, we will not be able to, we get taxed at the gross , uh , income instead of the net. So we lose that, all those benefits that we tend to use as self-employed people, we won't even qualify for health insurance, which is what was , uh , touted, you know, AB five was , uh , a big thing, oh, they'll be able to get benefits. Well, if I work for 10, 20, 30 different agencies, which one of them is going to give me health insurance is not going to happen because a health insurance is actually a French benefit that is given to full-time employees. And in fact, we know of a major corporation in the United States . Like every single employee works 35 hours a week in order for them to avoid having to protect them by giving them health insurance. So that that benefit doesn't even exist. It doesn't even come into the equation , uh, taxes , uh , social security taxes. The employer will pay 6.5% of social security taxes. But did you know that that self-employment tax that we pay is actually the equivalent of social security payments. We're actually paying into our retirement fund by the given, you know, when we retired and we get our social security benefits, we have actually paid into it at 15 something percent instead of the half of it that the employer would pay for it. So there are many things that we lose by being employee. We also lose the ability to negotiate, to negotiate working conditions and rates and so forth. Because an employer, even though they, if an agency would have to make me an employee to contract, to cover a deposition once maybe a full day today is who knows a trial, several trial in this case , um, they would have to bring me on board , make me an employee, pay me for that. But if it doesn't work out for them, they may change their structure because it works really well right now. But if you have an employee and you have many <affirmative> and you have many employees, which one would you hire to cover for your client? The one that charges you a lot of money, or the one that charges you the less . So now, instead of selecting a professional with highly skilled , uh , highly skilled professional, you'll be as an agency. I think you'll be looking into the one that is charging you the least. And you are actually doing a disservice to the community by doing that. I, I truly believe that we should be independent to better serve the community at large.

Speaker 1:

Now there are many interpreters and translators who prefer to have staff positions with benefits. It suits their lifestyle, but many of them have been both staff and freelance and independent contractors. There's nothing to say that we can't continue to choose between those options is there.

Speaker 2:

Absolutely. And that's what we argued. We want the freedom to choose. We want the freedom to freelance. Um , Los Angeles now has a union for staff interpreters. I mean, California has a union that represents staff interpreters and , uh , the federal courts hire interpreters. So I, we're not really opposed to employment. There is a choice and people do find it more convenient to go to the same place. They may want French benefits because they have a family to support. They want more stability being self-employed is not easy. Uh, you know, because it's, it's, it's every day looking for, unless you're well established , it's really hard to be established as a self-employed individual. So some people are used to work to having a job and they want a job and that's okay. But one of the things that I want to clarify is that we need those staff interpreters to support us as well, because they were independent contractors at once. And many of them actually did in spite of the fact that the union itself did not openly supported us. Uh , a lot of the union members did, and because one day they're going to retire and, you know, interpreters rarely retire because they keep on working in the private sector. So it behooves them to be, to have the freedom, to be retired and work here and there. And , uh , so it be , it benefits them remaining independent contractors is important even for the union because the unions, when they go and negotiate collective bargaining, it would be nice to say, look, the interpreters in the private sector are charging this much money. We should be making more money, right? And so it's, it's , it's a little thing that it's a benefit mutual benefit to have the private sector be as independent as possible to protect the protect , uh , the profession as a whole. That's basically the goal. I think , um, there were trailblazers that worked really hard at creating a profession that we're trying to build even more nowadays. So we need to respect that being employees actually discourages people, because why, if you're trying to defend your profession, you may be in direct conflict with your employer. So that's a difficult decision to make. Should I make my employer happy or my profession? And once you become an employee, you have a divided loyalty, basically.

Speaker 1:

So Esther, this seems to have been a long and complex journey for you. And now you're embarking on yet a new face of it. You and other interpreters in California have begun an association called APTI . Can you tell us what it stands for and why?

Speaker 2:

So APTI stands for American Alliance of professional in translators and interpreters . It's formed for the sole purpose of lobbying. We realized that our profession is growing. We're a fairly young profession, and that's why this loss took us by surprise. Nobody was watching, nobody was paying attention and nobody was looking out for interpreters and translators. The language service companies were taking care of themselves. They were already contacting the chamber of commerce attorneys. What we , what should we do? But they didn't ask for our opinions. So I tried to get the associations, our normal associations to hire a lobbyist. And I don't know where that's going to go, but I realized that it happened in California, which start in California. And we , uh, a lot of the groups and , and , you know, there were different groups that I , that tried to get an exemption. We got together, or I was invited to this presentation and to, to create, because I also alluded to that. It's like, we need something we need to be represented. We need. And I was hoping somebody else would pick it up. Nobody did <laugh> . So, okay. Uh , I was asked to participate, why don't we get together? Why don't we talk about this? And we are , um , in the midst of creating an association that will be launching pretty soon because our main point will be hire a lobbyist. And I just wanna make something very clear. I am hoping that the other Association's medical legal , uh , conference interpreting, I'm hoping that they all come to be part one big part of APTI , because we need to have representation in Sacramento, in Washington, DC , because there's also the P act law that is looming the background and that we need to watch out for. So we need to be more proactive. We need to show, we need to have somebody in the legislature to be aware, to represent us as an organization. We're getting to that point. We're not babies anymore. As a profession, we're actually premature getting to, you know, in adulthood basically. So it's time for us to go to the next level and represent interpreters and translators at , uh, the legal , uh , not the legal, but legislative. Uh , we need to be talked about, we need to be part of the conversation, but we need to be at the table rather than be a byproduct, a consequence of a law that truly affects us directly. And now with language access that the federal government is putting a lot of pressure in California to provide more language access to the community. Well, we need to be part of the conversation as to how the community can benefit from the youth of properly accredited, certified, with a degree, whatever translator of interpreter, we need to be part of that conversation. And that's our aim.

Speaker 1:

So let's , um, clarify a little bit for those , um, folks who are listening to us and who are , are , are viewing this podcast, not all national associations or even local associations have the ability to lobby. And this is limited by the way that they were constituted in terms of their incorporation. And it might also have to do with their bylaws. Can you talk a little bit about that? Because I think that generally when we join an association, especially a national association, we think that the association has all of these , um, you know, all these powers and all of these abilities to do different things, but sometimes they do not

Speaker 2:

Exactly. It depends on their bylaws and how they were formed. Uh , there's a typical 5 0 1 [inaudible] , which is , um , just an association to help , uh , other people 5 0 1 C four S that they're limited. And a lot of the money can go into the lobbying. So they, they do have their hands tied. Some of them have a limit for lobbying, even though they're , uh , properly formed , uh , to that ability. But their bylaws or initially said, no, we're not going to put any more money than this. So we've decided to create something that was quite different. They basically, another thing of concern to associations is that when we , uh , become members and we pay our dues, that's a tax deduction. Okay. When you put money into lobbying, it's not, however, it could be a business expense, not a write off as a , as a deduction that , you know, donation, but it could be definitely a business expense. And I am not an accountant or a lawyer. So anybody that wants to look into that should look into it. But one of the things is lobbying is important to everyone. It's important to maintain our profession, to maintain our standards and to , we need somebody to look out for us 20. I mean like every month , uh , not when something happens and we hire somebody to put out the fire, we need lobbyists that understand our profession. We need lobbyists that know what we do for our community. And this is something that interpreters and translators, when they have these conversations, they don't talk about enough is like, who are we serving? What is the purpose of my existence? Why am I a certified interpreter? Why am I a court interpreter? The reason I'm a court interpreter and I was tested for it is because somebody thought, well, this person is going to prison . They need to know what they know, but we need to hire somebody who knows what they're talking about. So the rights of that defendant are protected. That's what we're about. We're serving the public. We're serving. If we're in court, we're serving , uh , defendants, we're serving the courts, we're actually helping them understand. So the public itself is the one that gets the benefit of having professionals. And we need to make that very, very clear. I don't think I know that there is a lot of outreach or attempt at outreach. Our APTI will attempt to focus on the public view. We're not just catering to interpreters and translators. We're definitely build our goal is to build relationships with other nonprofits, with government officials. We want to be front and center and not just trying to appeal to the people who are supporting us. The , the people that we're trying to protect, which is interpreters and translators, but there's another aspect. And the aspect, our focus will be in protecting the community of people who actually utilize the services of interpreters and translators.

Speaker 1:

Now letters . Now it wasn't long after AB five was passed in California, that the us house of representative barely a month or a few days afterwards passed the, protecting the right to organize act. And that you alluded to that earlier pro act . And it's interesting that there are obviously many parallels to AB five. If it were to become law adopting, it would narrow down the criteria to classify a worker as an independent contractor. And so under the pro act , more workers in the gig economy could potentially be classified as employee employees entitled to the national labor relations act protection. Is it time for interpreters to look beyond their state borders and see the big picture and work together for the things that are important for them?

Speaker 2:

Absolutely. And in fact, that is EV whenever we, whenever we talked about forming an association, we had that , uh , we were waiting to see, okay, who won the election? It was biting Biden and Kamala Harris. They're both mentioned. And all Democrats mentioned how wonderful AB five was to protect misclassified employees. I'm sorry, misclassified workers. And , um , so this is an attempt to do this nationwide. In fact, there is talk about eliminating the right to work states. So that way the workers can collective , uh , do collective bargaining through unions. So that's fine. Uh , but we need to work and make sure that we're not being affected by that. Uh , the fact that we did get , uh , an exemption in California helped, but this law, the pro act offers no exemption . So we really need to work with legislators. We need to go to Washington and create relationships there to see how we can , uh , keep on working the same way we have, where in compliance with the law. And , and we're not trying to break the law here. We really wanna comply with the law and we need to explore what other options there are for interpreters and translators, but we definitely need to stay as independent , uh , con contractors. Those who choose to be independent contractors, basically,

Speaker 1:

Esther Avida . Thank you so much for joining us here on subject to interpretation. Um, I certainly appreciate you bringing a little bit of light into this very complex and difficult topic. I hope our listeners have enjoyed this conversation, and if they would like to ask you more questions, where can they reach you?

Speaker 2:

Thank you for having me. It's awesome. Just so you know that , uh , APTI , uh , just wanna say to the viewers and listeners that APTI will be going national. It is a national organization to protect every interpreter and translator in the United States. So I hope many people join us.

Speaker 1:

And where can we get more information about AppD ?

Speaker 2:

You can go to our website@apptconnect.org . That's AA, PT , I C O N N E ct.org , or email us@infoapptconnect.org .

Speaker 1:

Excellent. Thank you so much, Esther .

Speaker 2:

My pleasure. Thanks for having me.

Speaker 1:

Thank you for joining us today on subject to interpretation. We hope this episode has enriched your journey along this fascinating field of interpretation. If you're watching us on YouTube, please share your comments with us below. And if you're listening to us, don't forget to subscribe. So you don't miss our weekly episodes . Take care .