AB 5 Interview with Lorena Ortiz Schneider

AB 5 Interview with Lorena Ortiz Schneider

The ATA-TCD interviewed COPTIC founder Lorena Ortiz Schneider on the current status of California Assembly Bill 5.

For people outside of California who might not be completely familiar with Assembly Bill 5, would you please explain what this law is about?

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

Dynamex fired all their employees only to “hire” them back, but as independent contractors.

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

  • a) 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) Customarily engaged in an independently established trade, occupation, or business.

AB 5 was intended to curb blatant abuses similar to those engaged in by Dynamex, but in so doing, ended up affecting nearly every industry that relies heavily on freelancers.

How has AB 5 affected translators and interpreters and the translation industry as a whole?

The (b) prong in the law, which misclassifies translators and interpreters, has affected the entire industry in a profound way. Language companies both in and outside California responded to the law not by turning freelance linguists into employees, but by cutting them off and hiring non-California replacements. Here are a few examples:

AB 5 prevents an interpreter from subcontracting a boothmate for a conference. Instead, the interpreter with the direct client is now required to hire her colleague as an employee, even for just this one time.

It also renders it illegal for a translator to subcontract a translation to his trusted editor for review, unless he now hires the editor as an employee.

Language service companies –hiring entities– working with linguists –who perform the same type of work as LSC’s– as independent contractors are not in compliance with current law unless they convert their translators and interpreters to W-2 employees.

As a result, language companies, have either stopped working with California linguists or are requiring them to incorporate seeking some protection under the Business-to Business (B2B) subdivision of the law. Translators have reported a 30-50% decrease in offerings from their most trusted language companies already this year. 

Conference interpreters have seen an erosion in their workloads as agencies contract out-of-state interpreters for events. Companies offering over-the-phone interpreting have stopped contracting in California and some community interpreting agencies have struggled to find freelancers willing to work as employees. As a result, bilingual staff are being recruited to fill the void, leaving practicing professionals without an income and compromising the limited English proficient person’s right to meaningful language access.

How can companies still work with translators and interpreters based in California?

The way the law is written, language service companies can still work with translators and interpreters in California as long as they hire them as employees. However, in July 2019, Judge James G. Queenan held in the Miller case in the California Unemployment Insurance Appeals Board (CUIAB) ruling that interpreters are logically understood to be independent contractors and not employees. LSC’s who continue contracting with freelancers, are audited by the Employment Development Department (EDD) and are prepared to prove their contractors are not misclassified can use the Miller case as precedent.

You founded the Coalition of Practicing Translators & Interpreters of California. What has been done to fix this situation for translators and interpreters? Could there be an exemption for our profession in the future?

Due to the absence of an industry-wide advocacy program in California, the The Coalition of Practicing Translators and Interpreters of California (CoPTIC) was founded to convince lawmakers that all language professionals deserve an exemption.

CoPTIC was formed by a group of professional, working interpreters and translators in the state of California concerned with defending the independence of all language professionals including entrepreneurs, small business owners, and members of our profession who represent the engine that drives the world to communicate across language barriers. CoPTIC is a nonpartisan, 501(c)(4) nonprofit organization, that can spending an unlimited amount on advocacy and lobbying, and is governed by a chair and steering committee that reflects the geographic diversity of California. The Coalition has hired a trusted, knowledgeable advocate to provide the strategy and insight into the workings of Sacramento to guide its work.

CoPTIC has led its over 1200 supporters to engage in constituent driven advocacy. This simply means encouraging every language professional 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. It has the backing of the California language industry’s leading associations, such as the Northern California Translators Association (NCTA), the Association of Translators & Interpreters in the San Diego Area (ATISDA), the San Diego Certified Medical Interpreters Network, and the Association of Independent Judiciary Interpreters of California (AIJIC). It also has national and international support from ATA, TAALS, AIIC, JNCL and ALC.

What the Coalition has discovered in its efforts to win an exemption is that most lawmakers didn’t understand our profession before the law passed. Over the last 6 months, California linguists have sought to change that. Building relationships with local lawmakers has led to a greater understanding around the services provided by translators and interpreters to their communities, state, country and the world. Acting on a local level is leading to changes on a global scale.

In February, the Coalition was successful in securing a key legislator to author spot legislation that contains an exemption from the application of AB 5 to translators and interpreters. Last month, it was made public: Senate Bill 900, sponsored by Senator Jerry Hill (D-San Mateo).

SB 900 provides a set of conditions, including credentials, whereby practicing interpreters and translators can continue to operate and serve Californians. It protects access to essential language services by and for Californians, and prevents exclusion of highly trained professionals, led by women- and immigrant-run small businesses, who are the backbones of a growing $2 billion sector of the California economy.

CoPTIC’s leadership has expressed tentative support for this draft legislation. It needs some improvement in defining who performs services, who delivers services and who qualifies to provide services. It is not perfect, and the Coalition  continues to work closely with Senator Hill’s office to secure amendments and solutions that respect all translators and interpreters. CoPTIC has earned its position as the go-to organization for lawmakers to obtain information and guidance about our professions. The advocacy is working!

Where can we learn more about AB5 and where can we voice our concerns?

To learn more about what you can do to correct the misclassification of California language professionals, and interact with like-minded colleagues, visit CoPTIC’s website and interact on its social media:

About COPTIC

Website: www.coalitionptoc.org. Facebook: www.facebook.com/coalitionPTIC Twitter: @CO_PTIC 

Be sure to join by sending an email to [email protected] to get on the mailing list and donate gf.me/u/vtx95j to support the effort.

The goal of the Coalition is to win an exemption for California translators and interpreters, and in so doing, set a precedent that colleagues in other states where similar laws are taking shape can follow.

You can also read the full text of SB 900 in its current form here: http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB900