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AB5 keeps translators and interpreters from the fight against COVID-19

Written By | Mar 25, 2020
California, AB5, Gavin Newsome

Gavin Newsome – Video Screen shot (The Hill)

WASHINGTON: From medical information in multiple languages to advocating for non-English speakers. For the hearing impaired in the clinic, emergency room, and the courtroom, translators and interpreters are already on the front lines and are desperately needed during this COVID-19 pandemic.

So why did California disenfranchise thousands of translators and interpreters through the AB5 law?

“I know there is currently a higher demand to provide workers with timely information related to COVID-19 in various languages other than English. In California, translators and interpreters are not permitted under AB5 to assist with this need currently,” Ildiko Santana, a Hungarian/English translator and editor said.

Diane Gunn, a legal translator explained the work she could be doing if not for AB5:

“Flyers and online brochures are essential for educating people about the virus in other languages,” she said. “Since this is an isolated incident, these translators would have to be independent contractors. And, because of shelter at home, they obviously would need to work from home.”
Translators and Interpreters on the front lines of COVID-19

There is a general confusion and often disregard for the critical role that translators and interpreters fill every day. Translators handle the written aspects of language; Interpreters handle the spoken or sign language aspects. Both professions do the specialized and difficult work of converting documents, information, and spoken messages from one language to another.

The roles are not interchangeable, although there are individuals who are skilled and trained to do both.

While some places do utilize staff interpreters and translators, because of the on-demand and high volume nature of the work, most interpreters and translators are freelancers.

Newsom’s AB5 kills healthcare workers assisting
homeless with COVID-19

In our digital age, they can work around the world from the comfort of their home and home country. This seems to be the perfect solution for our current situation here in California, where Governor Gavin Newsom has executed a shelter-in-place order.

The economy is at a standstill, people are losing their jobs, and people are confused and frightened over the information concerning the coronavirus. (California Gig Workers Among the Last to Get Job-Loss Checks)

Yet, AB5 is making it illegal for professionals who could be on the front lines of COVID-19 communication to do the work.

“During a pandemic this goes beyond individual translators and interpreters losing their livelihoods; multitudes of those who would enjoy their services are potentially left in the dark and put in harm’s way,” Ildiko said. “This is immoral, criminal, and in this age of high tech, when such services do not require physical proximity, completely unacceptable.”

In critical medical emergencies like COVID-19, information comes rapidly, and needs to be disseminated quickly. The majority of hospitals and medical offices do not have in-house staff to cover interpretation or translation, nor do they have the capacity among their staff to even begin to know how to contract these professionals.

David Higbee, a Japanese/Spanish/English conference/court interpreter and translator explains:

“With COVID-19, hospitals and staff are already overworked and understaffed. Now you expect them to take the time to hunt down an interpreter? That is ridiculous!”

Gloria M. Rivera, an English/Spanish translator and California-certified medical and court interpreter further explains,

“Due to the nature of our work, most of us are independent contractors, by choice, and work on a freelance basis with multiple clients, by design.
“Few of us have direct clients and most of us work through agencies and companies that hire us for projects/assignments,” she said.
California’s many voices means an increased translator need

In 2017, the Los Angeles Times rightly defined California as the most linguistically diverse state in the nation, with at least 220 languages spoken, and 44 percent of its residents who speak a language other than English at home. California interpreters and translators fill this language gap in both the medical field and the courts of law.

“It takes time and resources by hospital staff to even go through that process. They don’t understand the economics of hiring interpreters and translators as employees,” David said. “That translates to impact on patients, and impact on hospitals, and clinics, and attorneys that cannot hire independent contractors.
“[Assemblywoman] Lorena [Gonzalez] did zero studies on impact. They talked to people who are employees in a union. Here’s the concept we’re fighting against. The concept of commoditization. They see these specialized jobs as just commodities. They don’t understand the nuances.”
Critical work during Critical times.

These nuances go beyond the language barrier. Translators impact the frenetic nature of hospitals or a court proceeding. The strange and complicated nature of a proceeding or examination, or invasive medical procedures and tests that only another human could bridge.

While there are artificial intelligence means available (think, Google Translate), it does not replace non-verbal communication, gradations within languages and cultures, or just the human connection of voice, tenor, or even a smile.

“With a lack of interpreters, you may have people who will not want to get a test because there is no one there to interpret for them,” David continued. “If they didn’t have me, they wouldn’t have anyone to speak for them.”

AB5 is cutting off these professionals from doing this important work at this critical time. Critical work that saves a community from COVID-19’s spread, and ultimately saves lives.

“I do Japanese to Spanish translation,” David stated. “I may be one of the few translators on this planet that can do that, on this level. It’s a niche, and these niches are the areas that are really being hit hard.
“Court and medical are not completely unrelated. You will have people with medical issues at court. What if one of those people you are working with at court has the virus, and they can’t communicate that to anybody because they don’t have anyone who speaks their language?”
It’s not as easy as A-B-C.

As explained in prior articles in this series, it is the “B” portion of the test used to determine whether a person or business can be considered an independent contractor under AB5 that is preventing most contract professionals from being compliant with the law. But even with a DBA (doing business as) or an LLC (limited liability corporation), the Business-to-Business exemptions codified in the AB5 law also present problems for these language professionals.

These 11 additional “hoops” that the independent contractor must fulfill in order to be considered for the business-to-business exemption fail to understand the complex nature of how translators and interpreters work.

“We don’t pass number 5: ‘Work for our client’s clients’,” Gloria said. “You can say that by me translating a document for a hospital through an agency is not number 5, because the end-client is the patient who reads it.
“Or you could say the end-client is the hospital because they pay the agency who then pays me.”

Because AB5 is poorly written and confusing, contracting agencies cannot afford to take the risk with California translation and interpreting professionals.

“I can tell you that in terms of translation, there are translation projects that are now going unprocessed because agencies in California are no longer able to subcontract to translators,” David said. “Agencies outside of California have canceled contracts. Agencies in California have increased their requirements. In order to work with us you must be an LLC—that’s the best case scenario. Worst case, they just ghost you.”

Contracting agencies that used to be able to quickly and efficiently fill the need for rare languages like Mixteco (an indigenous language of Mexico), or less common languages like Swahili with a California translator or interpreter, can no longer do so.

If a California independent contractor is hired and they do not meet one requirement of the law, the contracting agency could be fined between $5,000 and $25,000 per misclassification violation.

This is more than a California conviction on sexual battery which carries a fine of $2,000-$10,000.

Baked into the law is a retroactive provision up to four years; meaning that the enforcement agency (currently California’s Employment Development Department) can reach back to 2016 to dig up a lack of compliance and charge fines and penalties over four years.

The toll of AB5 on translators and interpreters
“Under the language access laws of the federal government of the United States, you have to find an interpreter that speaks their language,” David explained. “You may not find a match, so you have to do relay interpreting. Simultaneous interpreting of very complicated court proceedings. You have to get every nuance across. Their [the person needing the interpreter] lives are very literally hanging in the balance.
“Most translators are working in one language pair, and they’re highly specialized. You have to find the right person for every single project, every single time. Translation agencies’ hands have been tied. They cannot work with a high pool of translators. Just because you are bilingual, doesn’t make you an interpreter. Trained professionals, true medical interpreters, AB5 has made it where these people cannot do the job.”

Diane brings home the toll this law is taking:

“People are losing contracts, companies are losing freelancers, and this vital industry could be lost,” she said.

Translation and interpretation professionals and independent contractors affected by AB5 have made repeated appeals to Governor Newsom to suspend the law.

Assemblyman Kevin Kiley has asked Governor Newsom to use his emergency powers to stay AB5 during this COVID-19 pandemic. This would allow people to get back to work. With a sinking economy, California business revenues falling precipitously, and the state as a hot zone, interpreters and translators, as well as nurses, nurse practitioners, medical educators, and respiratory therapists could be doing the work of treatment, communication, and bridging language barriers.  (California sees 1 million unemployment claims in less than two weeks)

All these professions do work that confronts this COVID-19 crisis head-on, and mitigates the spread of coronavirus. What should be common sense is being disregarded for union obeisance and partisan ego.

Lives are on the line, and Governor Newsom is whistling in the graveyard.

“Yesterday I actually received an urgent request, to translate 2 letters regarding COVID-19 and plasma / blood donations,” Ildiko said. “This is yet another, less obvious factor to consider. Now, more than ever, we need more supplies to save lives, yet the information will largely remain in one language, eliminating potential donors participation.
“Ironically, the client who sent me this urgent assignment could get in trouble under AB5 and fined up to $25,000! Just for trying to help humanity in a global pandemic. This is truly heartbreaking.”

Jennifer Oliver OConnell

Jennifer Oliver OConnell offers witty, insightful, and direct opinion, analysis and musings on local and national politics and popular culture, with occasional detours into reinvention, food, and Yoga. Jennifer also teaches Yoga, and coaches clients on careers and reinvention. You can keep up with what's in Jennifer's orbit through her As the Girl Turns website.