Labor Issues and Interpreters in the California Trial Courts: An Exchange

To the Editors:

I am a member of NAJIT and of the California Court Interpreters Association and a California State and Federally certified court interpreter. Certain information was included in the Bay Area Court Interpreters presentation [at the May 1999 NAJIT Educational Conference in San Diego] with the express intent to distort CCIA's stand on the employment status of the majority of court interpreters in California, as well as on other relevant issues.

The vast majority of interpreters are independent contractors, and according to all information I have, this majority wishes to remain as such. CCIA acknowledges their wishes and, to protect this status, has a taken a stand opposing legislation and lawsuits that put it in jeopardy.

BACI speakers cited the Polanco Bill (which was amended and allowed to die), and a virtually identical predecessor (which was vetoed by then-Governor Wilson). The Polanco bill would have mandated the courts to engage in collective bargaining with interpreters as independent contractors, and it stipulated the IRS would not retaliate against interpreters for engaging in collective bargaining with the courts. BACI and CFI supported these bills. CCIA and the Judicial Council of California Interpreter Advisory Panel opposed them.

There were fundamental problems with the Polanco Bill:

1) Collective bargaining is only a right of employees belonging to a union. Participating in negotiations colored as "collective bargaining" would have exposed interpreters and counties to audits and huge penalties and forced employment reclassification by the IRS and EDD. At best, the bill would likely have been invalidated by pre-existing federal labor law, which specifically states only employees may unionize and engage in collective bargaining; and

2) The bill's merely stating the IRS shall not retaliate against interpreters carries no weight whatsoever, since the IRS is not regulated by the California State Legislature.

At around the same time that the predecessor of Polanco was being proposed, a number of interpreters sued the L.A. County Superior Court for reinstatement of a contract that had provided them with some benefits. (CCIA would not support the lawsuit because the group expressed its desire to assert its "employee" status.) An important reason why the County had rescinded the contract was that it could give interpreters the appearance of being employees. The interpreters finally lost the suit, but a small number of them filed claims of employee status with the IRS.

What have been the consequences of these actions?

The county where I work said it would have revoked our contractor status and forced us to become employees (working 8-5 instead of our usual 8:15 to 2:00) to protect itself from the IRS if Polanco had passed.

A neighboring county offered interpreting services to agency bidding. It ended up offering individual interpreters written contracts, with every provision possible to protect itself from audit. The one interpreter who had been an employee was terminated (losing his benefits) and given a contract.

Numerous interpreters have been audited by the IRS. In one case I know of, the auditor was aggressive in asserting the interpreter was really an employee.

What has happened in the legal arena since the L.A. group lost its lawsuit?

The IRS sued Los Angeles County, claiming all the interpreters were employees, and lost.

An interpreter whose services were discontinued sued for wrongful termination (which only employees can do) and lost. The federal court which heard the case deemed her an independent contractor.

So the courts have decided we are independent contractors. It is obvious, however, from the BACI speakers' presentation that they think employee status is the way to go, and gave rosy alternatives to full-time, 8-5 employeehood. Whether a county and the union its employees belong to are willing to accept those alternatives is another matter. And employees do not have to be paid medical and retirement benefits.

They are so convinced that this, however, is best for all interpreters that within days of the NAJIT conference, on May 18, 1999, at a meeting of the Judicial Council's Task Force on Trial Court Employees, a BACI representative requested it make all court interpreters employees, pay them $200 per diem plus benefits, and allow them to leave when their work is completed. The Task Force did not think this feasible, or even credible, since this request takes away the counties' hiring authority and goes directly counter to the funding parameters now being set. (Such a change could also have devastating financial and tax consequences for many interpreters.)

No one opposes the desire of some interpreters to become employees. But there is a right and a wrong way to do things. The right way is to approach court administrators and discuss creating an employee position with an appropriate job description. I have talked with three California counties that are open to this possibility. By following this route, instead of filing a lawsuit, the counties will not go on the defensive for fear of audits and astronomical retroactive tax penalties.

Furthermore, and in spite of what BACI says, interpreters in a number of counties have had successful contract negotiations with more than "limited success," which could be used as a model for other counties.

Also, in spite of what a handout states, CCIA did not lag behind BACI and CFI, but rather has been at the forefront of attempting to secure higher rates. Its members in various counties always tried to obtain raises for interpreters before the state took over control of funding, and within days of the passage of the Trial Court Funding Bill (giving control to the state), our president was speaking with the Administrative Office of the Courts regarding an increase.

I am sure we all agree that in order to further the interests of our profession we have to define and seek to further our goals effectively. As for becoming an employee, no one should have to because he or she was forced into it or because someone else requested it for them. Personal circumstances vary widely. We each have to take responsibility for ourselves by being informed of the financial and tax aspects of contractor vs. employee status. Then we can pursue our objectives in such a way that we are perceived and treated as informed professionals.

Denise Look Choate
Seaside, California

Mary Lou Aranguren and Stephanie Moore reply:

Ms. Choate's letter misrepresents BACI's position and actions, but it is useful in that it expresses some of the fears and misconceptions of employee status which many interpreters share. If a majority of interpreters wish to remain independent contractors as Choate asserts, it may be because their concept of what it means to be an employee is limited to a "nine to five" position in which they have less control over their time and work. Our research, however, has led us to conclude that a negotiated contract would provide interpreters more control over their profession and working conditions.

Our research is not aimed at making interpreters into employees against their will as Choate suggests in her letter. Rather, we hope to initiate a rational discussion that will lead court interpreters to make informed decisions about their employment status. We hope that ultimately, rather than the courts deciding and imposing their will on interpreters, interpreters will choose what is best for them.

Ms. Choate believes we are independent contractors because the courts say we are. She should consider that the courts have a vested interest in defining interpreters as independent contractors. This gives them full control over our conditions and saves them money. Whether we are legally employees or contractors depends not on what the courts say or what we say, but on the specific conditions of our employment relationship. These vary to some degree from place to place, but many interpreters in California work in a system that increasingly treats them as employees but denies them the right to negotiate their terms through collective bargaining. The idea that all interpreters statewide will be forced to become employees if interpreters in some areas seek recognition of that classification is a scare tactic that the courts will use to factionalize interpreters. We believe interpreters will not fear employee status once they learn that flexibility and control over our profession can be preserved through a negotiated contract. Given the flexibility the courts need in providing these services, it is also likely that the courts will continue to use a combination of employees and contractors as they do in some areas with court reporters.

Choate says that CCIA has taken the "legally correct" position in opposing the efforts of interpreters who seek recognition as employees. The first step in a rational discussion of this topic is to understand that there are no black and white answers when it comes to employment status. Our investigations with labor law experts indicate the law in this area is ambiguous, open to interpretation, and evolving. It's not surprising then, in the absence of an organized and united effort by interpreters, that the IRS and Court of Appeals found interpreters in LA to be contractors. Our attorneys advise us that these decisions were based as much on politics and power dynamics as on the reality of interpreters' relationship with the courts. The minutia of events related to employment status in the Los Angeles courts has been disputed endlessly. A discussion of those events was included in our paper so we may learn from past experience. However, it is more important that interpreters understand the larger dynamics of the situation and recognize how the contentiousness and division surrounding this issue have kept us from making progress. We believe most interpreters and our professional associations see the wisdom in avoiding further bickering about past events.

Changes in our working conditions are inevitable and we must position ourselves to have a voice and a vote in those changes. The Judicial Council of California is currently developing a statewide, model contract that will impose increasing supervision and control over court interpreters' time and professional practice. Judicial Council staff have made it clear they have no intention of negotiating the terms with interpreters. The courts have defined us as contractors and, conveniently, they have no obligation to negotiate with independent contractors. If we accept being classified as independent contractors, we will have very little power to negotiate locally or on a statewide level. It would be a mistake to simply try to maintain some pretense of independence as pseudo-contractors. Local efforts by individual interpreters are well and good, but they will not give us the power that we need to control our profession. It is more important than ever that we pursue a relationship with the courts that gives us rights and power within the system, and we must do so as a united, cooperative group.