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The Misclassification of the Healthcare Interpreter in California
Much has been made of the recent Dynamex decision by the California Supreme Court that significantly restricts the definition of who can be legally claimed an independent contractor (IC) in California by a business retaining people as freelancers. AB 5 (Gonzalez- D, San Diego) which has passed the California State Assembly and is currently in the Senate for review, appears to be closer to the Governor Newsom’s desk than many would have thought.
While AB 5 will cause a huge economic hit to the business of Uber and Lyft, as they rely exclusively on IC drivers to move their business, few have given much thought to the life and work of the freelance healthcare interpreter in California.
I have a real story about this issue. I had been in business about 7 years when I received a letter from the California Employment Development Department (EDD) stating that the many hundreds of interpreters I had been “contracting” with as IC’s were in material fact, employees, because we were directly managing their work by training them about how to interpret correctly.
The EDD was right, there was no way I could control the quality service output of these newfound interpreters without converting the workforce to employees. In lieu of paying for legal defense, I paid close to $100k in fines and interest and crossed my fingers that our quality would pay off in the long run.
This decision remains the single best thing I have ever done for my business since its founding. I am now able to consistently and carefully deliver quality patient language access care for the many thousands of Limited English communities throughout California.
Unfortunately, most interpreting agencies who do business in California continue to use freelancers found on craigslist and anywhere else they can scoop them up. These agencies exert virtually no oversight of the linguistic capabilities, continuing education nor the ongoing behavior of their workforce, as they cannot do this without triggering a clear misclassification action by the state. These agencies jeopardize patient safety and compromise the important strides we have made in defining and delivering a true quality proposition for the in-person spoken language interpreting industry.
Calling workers independent contractors not only takes away minimum wage and overtime benefits, but it also means all the risk is shifted from a company to an individual. He or she must purchase and maintain a vehicle, pay for transportation expenses, and provide their own tools and supplies. They are not entitled to a safe workplace or protected from discrimination or retaliation. That worker has no access to unemployment when the job ends, no workers’ compensation if injured on the job, and no access to company paid benefits.
Recently, I heard that a California interpreting agency is now compelling all their freelancers to formulate individual “Limited Liability Companies” (LLC’s) to help shield them from the Dynamex decision and the potential passage of AB 5, as well as the financial responsibilities to their workforce detailed above. So, on top of the added burdens of paying for the right to work as an interpreter, now bilingual people who wish to join a professional workforce as a California healthcare interpreter have the added burden of filing expensive incorporation documents to the tune of $800! Might not be a bad idea for the interpreting agency to pay for this, given the massive benefits they will enjoy by shifting their responsibilities of employment back to the interpreter.
The Dynamex case and by extension AB 5, will help those companies that are following the rules. My interpreting agency pays our share of federal, state and local taxes, and we mitigate risk for our clients and employees by being fully insured. If someone gets hurt on the job, we pay for workers compensation insurance so we all have peace of mind. We partner with our employees to ensure they receive continuing education, experienced supervision and mentorship, and are supported in every aspect of their career choice as interpreters. We pay for travel time, we supply our Level 4 and 5 interpreters with simultaneous interpreting equipment, and all our interpreters receive free uniforms and badges. We pay for national certification testing, and every year we provide a number of scholarships to our annual state interpreter meeting (www.chiaonline.org )
My competitors do not, which leaves us at a competitive disadvantage due to the added payroll and administrative burdens required of all California employers. Dynamex protects workers, but it also benefits employers like our interpreting agency that follow the rules. Misclassification is unfair competition and makes it impossible for responsible companies to stay in business. A clear test and improved enforcement will create a better business climate and help to crack down on the underground economy.
Interpreting agencies supply interpreters! It is the primary work of the agency, and IC’s deployed in the course of doing business clearly fails the “B” aspect of the “ABC” test codified by Dynamex:
“….that the worker performs work that is outside the usual course of the hiring entity’s business”
For these reasons, it is a priority for my interpreting agency, Language World Services to defend Dynamex and AB 5. By sharing the risks, and burdens, and extending the protections and benefits of full time or part time employment, we field the highest-quality interpreter workforce available in California today. I only wish others would play by the rules.