The impact of AB 5 on court interpreters in the private sector

Certified court interpreters working in the private sector are an integral part of the justice system. Utilized during attorney-client meetings, depositions, arbitrations, mediations and civil trials. Additionally, administrative hearing and medical interpreters work in the med-legal sector.

Small law firms may contract directly with an interpreter, but more often than not, the mid- to large-size firms rely on a one-stop Language Service Company (LSC) to arrange all their language needs. The LSCs rely on a small pool of independent contractors who are highly skilled as certified court interpreters. LSCs also have a roster of conference, administrative hearing, and medical interpreters. Interpreters have a much broader role in the private sector than in the courtroom. Historically, interpreters work with multiple LSCs to fill their work week, unless they are employed by the courts. The autonomy of the interpreter is essential in providing language access in the private sector by being available to anyone needing language services, at a moment's notice.

Assembly Bill 5 has threatened this autonomy. A key component when determining whether someone can continue operating as an independent is the "ABC test" adopted by the California Supreme Court in the 2018 Dynamex Operations West v. Superior Court ruling, which AB 5 attempts to codify. Particularly troublesome for interpreters who contract with multiple LSCs is the "B" prong.

According to the B test, workers must be treated as employees, not independent contractors, if their jobs are central to a company's core business or the service is provided directly to the client or their customer. Because the LSCs are in the same line of business, then the bill aims to have interpreters deemed employees of each one of the many LSCs that we contract with.

This will cause a major disruption to the legal system that relies on the availability of interpreters to communicate with clients or witnesses. It is estimated that there are around 5,000 language professionals in the state of California. There is a limited number of available court interpreters, as the number of certified interpreters in all languages in California is less than 2,000. That includes roughly 800 employees of the state courts.

Below are some of the changes you may see with the implementation of AB 5:

• Availability of interpreters will decrease. If a firm has a last-minute request, and there's an available interpreter but that interpreter is not an employee, that request will go unfulfilled, causing your firm to spend valuable time locating one.

• It limits an interpreter's ability to serve all clients regardless of who they are. Interpreters and translators see LSCs as clients and not employers.

A typical interpreter contracts with as little as 10 and as many as 40 different LSCs.

• If hired by one or all of them, that employer can arbitrarily change payment structure; and instead of keeping the more experienced interpreters they may start hiring less experienced interpreters at a lower pay scale.

• Languages of lesser diffusion -- such as K'iche, Mixtec, Urdu, Dari -- that are infrequently needed will be particularly impacted.

Interpreters may decide that this is too burdensome and walk away in search of more fulfilling work. Some may choose to move out of state where they can remain free to work as independent contractors, creating a significant shortage of qualified interpreters in California.

• Without a business deduction, there is less incentive for individual interpreters to offer pro-bono interpreting services.

• Attorneys involved in lengthy proceedings may have to become an ad hoc employer, making sure the interpreter working on their case gets the breaks and lunch required of employees, since the employer will not be able to monitor these breaks.

• Interpreters will not have the flexibility to cancel or reassign conflicting assignments to accommodate your needs in case your deposition runs longer than anticipated. This causes an additional inconvenience of postponing or cutting short your deposition, resulting in an additional expense to your clients.

• You may have to rethink confidentiality. Attorneys will have to rewrite confidentiality agreements with the LSCs. That's because an employer has the right to see what the translator is working on and have access to their computer, even if a translator is employed by yet another LSC and confidential or sensitive files are stored there.

• Employers may change work policies and prevent their employees from working with other employers, thus limiting an interpreter's ability to work. As a subordinate, an interpreter will have no discretion on the matter.

The optimal model allows collaboration between LSCs and the interpreter in providing language services to the legal profession to continue as it has for decades. Recognizing the adverse impact of AB5 for language professionals, we created the Coalition of Practicing Translators and Interpreters of California (CoPTIC) to advocate for our profession. Eleven associations support our efforts. We are seeking an exemption from AB5, as we are not misclassified workers.

Our legislators must take a closer look at how much we contribute to the well-being of all Californians by providing language access in and out of the courtroom, even at a moment's notice.

AB 5 adversely impacts interpreters and, indirectly, the legal professionals. Ultimately, AB5 also hurts the people who most urgently need our services. 