Everything We Know About Proposed Legislation HB 1386/SB 5233 (exempting interpreters from employmen

HB 1386/SB 5233 would effectively exempt interpreters working through an "agent or broker" from employment protections. We are not completely sure of the full breadth of impact this bill could have on the interpreting profession, but permanently stripping interpreters of employment law protection is not something that should be rushed into. This bill was brought by spoken language referral agencies, through a hired lobbyist, to try to exempt all interpreters working through a broker or agent from employment protections such as worker’s compensation when an interpreter is injured on the job. WSRID has met with the bill’s main proponent, Dynamic Language (Dynamic), as well as various other attorneys, referral agency owners, and interpreters from Washington and Oregon. Based on those interviews, we believe this bill has not been thoroughly vetted and it could be harmful to our profession. WSRID is asking the legislature to hold off voting on this piece of legislation for the 2017 session until the impacts of the bill have been sufficiently studied and debated. We have compiled this FAQ to further explain our position.

What is this bill all about?

●Dynamic and the coalition of spoken language agencies feel they are being unfairly targeted by Washington State Dept. of Labor & Industries as well as the Employment Security Department with “unnecessary” audits. Dynamic reports they have personally spent tens of thousands of dollars on attorney’s fees defending themselves from State audits, and this legislation is intended to shut the audits down quickly and easily.

●While Dynamic reports there is no specific incident of misconduct that sparked these audits, nor adverse findings against them, those claims are unverifiable because the information about audits is not made available to the public.

Who is behind this bill?

The following agencies are splitting the cost of a lobbyist, $4,000 per month, to push this legislation through.

●Dynamic Language

●Universal Language Services

●Northwest Interpreters dba NWI Global

●Academy of Languages

●Divas Interpretation Services

●Gateway Languages, Inc.

●JRM Enterprises dba Professional Language Services

●Language Exchange, Inc

●Languages Translation Services

●Ms. Flowers

●Translation4all, Inc

●Well Spoken Interpreting, LLC

●Interpret This

●ASAP Translation Services

●Columbia Language

Update: This list was given to us by Dynamic and is still unverified. If there are any agencies listed that would like to publicly come out against this legislation please email us an we will publish it.

Aren’t interpreters already exempt from employment protection such as workers compensation?

●Not always. Like most states, Washington law already exempts sole proprietors from employee protections. However, this exception does not apply when an agency illegally misclassifies an interpreter. See Section (5).

●Determinations about whether an interpreter is employed or is a contractor are made by looking at the amount of control the employer exercises over the interpreter. An interpreter’s tax status does not ultimately control whether they are employees or contractors. Some questions an auditor might ask to determine if interpreters are misclassified as contractors are, (1) who controls the interpreter’s schedule? (2) Does the agency pay the interpreter when the client fails to pay? (3) Does the interpreter invoice the agency after services are performed? And (4) is the interpreter required to perform other duties such as office work when there are cancelations?

●In addition, there are currently hundreds of sign language interpreters in Washington who are classified as employees (and are entitled to employment protection) working through referral agencies or video relay service/video remote interpreting (VRS/VRI) providers. These interpreters could be excluded from L&I by this law and denied future worker’s comp claims if they are injured.

Are illegal misclassifications common in the interpreting industry?

●Yes. For example, in 2009, the federal government cracked down on illegal misclassifications by VRS providers when interpreters classified as independent contractors were performing identical work to employees. As a result, most VRS providers now rely on an employee only model.

●In addition, Dynamic reported that they did know of other referral agencies in other states that were found (through an audit) to be illegally misclassifying interpreters.

●Finally, Dynamic also reported to us that they suspected other agencies within the state were engaging in illegal misclassification through conduct such as sending contractors end of the year “thank you” gifts and inviting contractors to company parties.

Is it true this legislation “protects interpreter choice?”

●No. Dynamic frames this legislation as a protection of independent contractor status for interpreters. However, even if this bill is defeated, an interpreter’s ability to work as an independent contractor is not being threatened.

●If this bill passes, it could threaten an interpreter’s choices by eliminating employment as a viable option in the field (specifically those employed by referral agencies or VRS/VRI providers). If this legislation passes, it threatens employed interpreters by making them ineligible for L&I if injured at work. Employment among interpreters is especially common in the ASL industry where some ASL referral agencies employ and contract with interpreters. In addition, hundreds of interpreters are currently classified as employed by VRS/VRI providers around the State.

●This is particularly alarming to us because sign language interpreting “is one of the highest-risk-professions for ergonomic injury,” and denial of worker’s compensation to so many employees, in such a high-risk profession, is bound to be disastrous.

Dynamic says this legislation will have no impact on interpreters. Is that true?

●Absolutely not. First, this bill was written in November and the potential impacts have not been studied.

●Second, in Oregon, where similar legislation was passed, interpreters report referral agencies have taken more and more control away from contract interpreters (i.e. controlling interpreter’s schedules, hours, and conditions of employment) because they are able to do so without being bound to also providing employee benefits.

●Third, we suspect this bill will effectively shut down the necessary audits that protect interpreters from misclassifications. Without these audits, we would have to trust referral agencies to appropriately classify and pay interpreters. When interpreters are unknowingly misclassified as contractors, they may be paying taxes that the employer should be paying, and losing other benefits like overtime pay and health insurance.

provided for others through an agent or a broker.”●Fourth, we believe VRS/VRI providers will be included in this legislation based on how similar legislation has played out in Oregon. The language of the bill includes all interpreters “ In Oregon, VRS/VRI providers have classified themselves as an agent or broker to avoid liability for injury, and at least one ASL interpreter employed by a VRS provider so far (that we know of) was denied worker’s compensation when she was injured on the job.

Why does this bill classify interpreters with jobs such as gardeners, domestic servants, minor children on family farms, horse jockeys, newspaper carriers, chauffeurs, etc.?

●Because the legislature does not understand what we do. The legislature’s intent was to exempt certain professions that dealt with domestic service, casual employment, or charitable work from mandatory worker’s compensation coverage. Interpreting is seldom “casual work.” This statute was absolutely never intended to include a profession with such a large percentage of individuals actually employed.

●In addition, even for the specific industries currently exempted, this law primarily benefits the employer at the expense of exempted workers. For example, newspapers companies are allowed to avoid any liability in instances when children working as newspaper deliverers are struck and killed by cars while on the job.

Doesn’t Oregon have this same law?

●Yes. This law was modeled after a law in Oregon. However, Oregon is a unique state that has never excluded sole proprietors from worker’s compensation like Washington already does.

●Interpreters in Oregon have reported that they opposed this legislation, and they have seen negative impacts on the profession of interpreting in their State. See above.

Were any interpreters consulted before this legislation was written?

●Absolutely not. However, Dynamic does report they have received a 100% positive response from spoken language interpreters since the announcement of this legislation. Dynamic would also like us to emphasize that they do feel they gave interpreters sufficient notice this would happen because they gave a presentation to ASL referral agency owners at a Registry of Interpreters for the Deaf conference in 2011. WSRID expressed our incredulity and disagreement with both of these claims in our interview with Dynamic.

Do these audits harm agencies like Dynamic?

●Before you start to worry about Dynamic’s profit margin, you should know Dynamic was named to the list for fastest growing companies in the US six years in a row, and they are taking in millions of dollars in profit per year. Attorney’s fees and audits are a regular part of doing business in this state, and companies should not be able to bypass necessary audits at the expense of interpreters simply to increase their own bottom line.

What can I do?

●Call your own representatives and urge them to help protect interpreters.

●Tell representatives on the Labor & Workplace Standards Committee in the House and Commerce and the Labor & Sports Committee in the Senate. your opposition to this bill. They need to hear from you to better understand our profession.

●Let your colleagues know! Unlike referral agencies, interpreters do not have a lobbyist looking out for our interest, and we need to do what we can to work together to protect those in our profession.

●You can also sign up for alerts on this bill. Please sign up to get an alert for the next hearing. If you can make it to Olympia on the day of the hearing, please show up. We have power in numbers!