California’s AB 2257 is an attempt to loosen a previous gig economy clean-up bill. It was authored by Assemblywoman Lorena Gonzalez, who also championed AB 5, the general workers-rights gig economy bill that went into effect January 1 of this year. AB 5 states that most workers are employees, and as employees, they should be afforded labor protections such as minimum wage laws, sick leave, and unemployment and workers’ compensation benefits — benefits that do not apply to independent contractors. However, actual independent contractors were alarmed by the bill. Many professionals in creative industries, from freelance journalists to photographers, wanted to stay independent — and indeed, independence was necessary to their livelihoods. Interpreters and translators in California were unhappy with AB 5, saying it had devastating effects on their ability to work in the state.
As a result, hundreds of California translators and interpreters formed an unprecedented coalition to educate their lawmakers on the topic. Since fall 2019, before AB 5 even went into effect, they asked legislators to understand that imposing employee status on interpreters and translators is disastrous. AB 2257 is the third piece of legislation to go forward seeking a remedy for this.
Before the amended version of the AB 2257 text was even made publicly available, the Senate Labor Committee approved it by a unanimous 5-0 vote on August 5. Incorporated into the bill at the last minute was AB 1850, which contained an exemption under Professional Services for “certified translator” but not for interpreters.
Lorena Ortiz Schneider, founder of the Coalition of Practicing Translators and Interpreters of California (CoPTIC), offered MultiLingual Media a breakdown of the legislation when the specific language was finally posted online August 7.
Legal breakdown from Lorena Ortiz Schneider
For AB 1850 to effectively clarify AB 5, an amendment must be made to change the language of exemption to include “professional translators and interpreters.” AB 2257 removed “certified translator” from Professional Services and added an exemption for both translators and interpreters under the Referral Agency subdivision.
The text is convoluted, seemingly contradictory in places, and certainly has everyone scratching their heads as to whether it would work for the language industry as a whole.
Below are some of the more troubling aspects of the bill:
Interpreters and translators would be exempt from application of the ABC test when providing services through a referral agency, which is defined as “a business that provides clients with referrals for businesses that provide services under a contract.”
Let’s unpack that: what we currently define as a language service company or language service provider (LSP) would be now considered what’s called a Referral Agency (RA). What we currently define as an independent contractor or a freelance translator or interpreter would now be defined as a “business.” This is because under this section, a freelance translator or interpreter would have to set themselves up as a “business entity” to avoid being hired as the RA’s employee when serving the LSP’s clients.
A translation company does not merely connect a translator to one of its clients (as would a temp agency) given the complex process that goes into producing a final translation. Thus, exempting translators from AB 5 under this section is non-starter #1 for the translation sector.
Non-starter #2 is that the translation company could not provide anything other than referrals and administrative services (so, no in-house linguists).
Complicating matters is that the translator, instead of the LSP, would have to deliver the translation to the end client directly and in their own name, which never happens when working with an LSP. That is non-starter #3.
Non-starter #4 pertains to the interpretation by LSPs of the term “business entity.” As we’ve seen since AB 5 passed almost a year ago, many LSPs have mitigated their risk of violating AB 5 by requiring their linguists to incorporate — sole proprietorship being not enough to qualify as a “business.”
Perhaps granting an exemption to interpreters formed as business entities to provide their services to an interpreting agency’s clients through a RA makes sense. It can be argued that the function of an interpreting agency is to “match” an interpreter to an assignment. However, where things get murky real fast is when comparing two sections under this subdivision.
Section (1)(D) says that “If there is an applicable professional licensure, permit, certification, or registration available for the type of work being performed for the client” the service provider (translator/interpreter) has one.
This sounds like a good thing if you are registered by the court to interpret in a language for which there is no certification, or you are a medical interpreter of Mixteco and there is no applicable credential. Or even in you translate in a language pair for which there is no ATA certification (the only association known to certify US translators).
But then further down the list of criteria to be satisfied is section (2)(C)(ii) defining which referral services may be included (but are not limited to) services provided through RAs. Among minor home repair, dog walking, and pool cleaning is “interpreting and translating services by a service provider certified in a language with an available certification through the Registry of Interpreters for the Deaf, National Association of the Deaf, Certification Commission for Healthcare Interpreters, National Board of Certification for Medical Interpreters, International Association of Conference Interpreters, American Translators Association, Judicial Council of California, State Personnel Board or any other agency or department in the State of California, United States Department of State, or a federal court.”
The question is: is Section (1)(D) intended to remedy the restrictive Section (2)(C)(ii)?
Clarity would be nice and may have come in the way of a legislative consultant’s analysis. He says that AB 2257 is particularly strong in how it navigates the “unique tensions and challenges of foreign language interpretation.” He alleges there is a “significant population of appropriately certified” Spanish interpreters for a “whole host of settings” but is not the case with languages of lesser demand. And therefore, AB 2257 addresses this reality by making certification necessary “were applicable” thus preventing certified interpreters to be passed over for uncertified ones.
The statewide coalition of professional linguists has gained momentum throughout the summer. CoPTIC enters the last lap of the yearlong effort to protect livelihoods and language access, having shown definitively that the chief claim about misclassified interpreters used by the author of AB 5 was not based on fact. At this moment of truth, state Senators have one last chance to adjust AB 2257 and decide whether its final form will help, or irrevocably hurt, the survival of the language profession in California.