Vol. VII, No. 2 - Spring 1998

LEGAL ASPECTS OF OUR PROFESSION

uite a large number of freelance translators occasionally give work to other translators. This happens either because they get requests for foreign languages other than their own working languages, or they have so much work in their language that they delegate some work to others, so as not to lose a client, for example. Consequently, there appears to be an employer/employee relationship here—or at least that’s what the Department of Labor would like to think.

But is it really so? My purpose in writing this article is to recount my personal experience with this issue in the hope that it will be of some help to those who are dealing with this problem or may face such a problem in the future.

What should you do if a representative of the local labor office calls you and requests that you bring all your books in for an assessment of employer’s tax? My first piece of advice is: don’t even try to convince the representative that the translators are not your employees but are rather independent contractors. Whatever you say, their task is to convert anybody into your employee. They’ll be after you like hawks! What you should do is request a hearing at the Administrative Law Judge Section of your state Unemployment Insurance Appeal Board. (In New York City, the address is 110 King Street, Room 6000.) Those judges are objective and fair. For years I had been asking my local labor office to show me any law or regulation as to who is considered an employee and who an independent contractor. I had also asked them to cite at least one precedent or mention one translation agency, large or small, who treated freelancers as employees. All in vain. As the popular Russian slang expression goes, “They were trying to hang noodles on my ears.” Their answer was only, “Well, your case may be different. We can’t cite any law... We have to talk about your case specifically.”

Finally I despaired and requested a hearing. It was held, and ultimately I won: the judge ruled that they were independent contractors and that I didn’t owe any tax. What makes freelancers independent contractors? I testified under oath with the following arguments:

• Translators have business cards and advertise their services. They are in business for themselves.
• Translators have multiple sources of income.
• Translators use their own equipment at home to perform their work.
• I provide translators with 1099 tax forms.
• I don’t supervise their work in progress; I am only interested in the outcome.
• Sometimes translators bill my clients directly.
• I am a freelancer myself, a sole proprietor, not a business corporation.

The employer is a business corporation which provides translators and interpreters to its clients. The principal and officer of the corporation incorporated the business in March, 1990. Before he incorporated the business, the principal personally provided Spanish interpretation for various federal agencies and private institutions.

Various government agencies and private persons and companies knew of the principal’s expertise and experience, and began contracting him. The corporation advertised in the telephone directory. He established a working list of interpreters and a few translators of Spanish, Italian, Russian, Polish, Japanese and Chinese. He considered and treated these individuals as independent contractors. Upon receiving a request from a client for an interpreter of a language other than Spanish, the principal contacted a person whom he considered to have the required skills. He listed interpreters and translators on his card index. He had met them during his years of service as an interpreter or he had obtained their names by advertising in a local newspaper.

As a result of the advertisements, he had received approximately 120 replies, which he screened. He then called those interpreters whom he deemed to have the required experience and expertise to discuss their background. He explained the nature of his business and informed them that they would be paid fifty percent of the fee which he charged his clients. The principal carried a beeper on his person so that he could respond quickly to a request for an interpreter or translator. He also carried a list of interpreters in order to expeditiously meet requests of clients.

In conjunction with the demands and needs of his clients, the principal officer assigned interpreters to the work place, also advising them of the nature of the assignment as well as the date and time. After accepting an assignment, an interpreter would call the employer as well as the client if unable to keep an appointment. In such event, so long as it was not too late, the owner personally accepted any assignment involving Spanish interpretation unless he was unavailable. Otherwise, he would obtain a replacement if one were available. He received complaints from the clients and processed these complaints. At one time, he almost lost a client based on a complaint about the conduct of the interpreter whom he had assigned. In response to the complaint, the owner called the interpreter and advised her not to repeat her behavior. The owner and the client negotiated the rate to be paid to the employer. The Department of Social Services, a major client, set a fixed hourly rate with a two hour minimum. Private clients usually paid a higher rate than governmental agencies. The employer then informed the interpreter of the amount of remuneration he or she would receive for the job, which was 50 percent of the fee the employer charged the client.

On completion of the assignment, the interpreter would call the employer to inform him of the number of hours worked. For the Department of Social Service and some federal agencies, the interpreter would complete a mandatory time sheet which the employer submitted with an invoice to the agency. The interpreter was responsible for preparing such time sheets in triplicate and forwarding two copies to the employer. The employer alone would bill and collect its fee from the client. It was the practice of the employer to pay the interpreter or translator in their individual names within three to four weeks after the completion of the assignment. In most instances, the employer paid the interpreter or translator before the client paid him. For federal agencies, there often was a delay in payment to the employer by as much as one year after rendition of services. The employer did not provide any fringe benefits to interpreters or translators, and did not make deductions from the payments to them. They were not prohibited from performing similar services for other translating services.

OPINION: The credible evidence establishes that the employer herein exercised sufficient overall direction and control over the services of the interpreters and translators to establish an employment relationship with them. An employer-employee relationship is indicated by several significant facts. It was the employer alone who maintained active client contact, contracting with the client for the services to be rendered by the interpreters and translators. It was the employer alone who collected for such services from the client after billing the client.

As one can see from this long citation, there is a difference between my arguments and those of Mercury Translations, Inc.

Of course, it could be that the best route to take is to hire a lawyer who specializes in labor issues. Granted: it is. But not all of us can afford such a lawyer and, fortunately, the Administrative Law Judge Section will accept pro se representaton.

Finally, one last piece of advice: never, ever mistake a 1099 form for a W-2!

Valerii Schukin is a New York-based Russian conference and court interpreter and translator.