AB 5: It’s Not Just in California

The recent passage of Assembly Bill 5 (AB 5) in California, which implements the stringent “ABC Test” embodied in the Dynamex decision and mandates classification of translators and interpreters as employees, is already disrupting our profession in California. Translators and interpreters in California have reported receiving notices from language services companies saying that they will no longer use California-based service providers in response to the new law. And those companies are not just in California. Out-of-state companies have stated their intention to stop using translators and interpreters in California because they fear the legislation applies to anyone hiring in the state.

But that’s not all. As predicted, other states, such as New York and New Jersey, have now begun legislative initiatives to implement the ABC Test (see sidebar) based on the California model. While freelance translators and interpreters would normally meet the A and C provisions of the ABC Test, provision B—“work outside the employer’s business”—forces all language services companies/agencies to classify translators and interpreters as employees. Such treatment is counter to the desire of the majority of ATA’s members and runs counter to long-standing practice in our industry. ATA issued a statement against the inclusion of translators and interpreters in the scope of AB 5 prior to its passage.1 ATA has now issued a similar position paper advocating for an express exemption for professional translators and interpreters.

In addition to ATA, the American Association of Language Specialists, International Association of Conference Interpreters, National Association of Judiciary Interpreters and Translators, and Association of Language Companies have all issued position statements in favor of an explicit exemption for translators and interpreters from AB 5.

The Coalition of Practicing Translators and Interpreters of California (CoPTIC) was founded to advocate for an exemption from AB 5. CoPTIC has hired a lobbyist and is holding meetings with interested stakeholders throughout the state to inform them about the implications of AB 5 and to promote grassroots efforts in favor of an exemption. ATA is actively supporting the efforts of the Coalition, and I encourage all members of ATA to visit their website2 or send an email (CoalitionPTIC@gmail.com) to learn more. Support their efforts if you believe that translators and interpreters should have a choice in their classification as independent contractors or employees.

ATA recognizes that some members, in particular community interpreters, may work “full time” for a single hiring entity and therefore should be classified as employees. Anyone who feels they should be classified as an employee can file a complaint with the California Labor Standards Commission or the Employment Development Department and make their case. But the vast majority of our members are indeed independent contractors and wish to be classified as such.

I strongly encourage our members in California to support CoPTIC’s efforts for an exemption and to contact their state assembly persons and senators.3 Just as the passage of AB 5 in California is serving as a model for other states, gaining an exemption in California will also serve as a model and make it easier for professional translators and interpreters to be exempt from being classified as “gig economy” workers in other states. Members in New York and New Jersey are also encouraged to contact their state legislators now, explain why mandatory classification is so harmful to you, and urge them to specifically exempt translators and interpreters from mandatory employee classification. I ask all other members to be on the lookout for similar legislative efforts in their states and to inform me if similar legislation is proposed. We can only protect our profession by showing a united front and through grassroots efforts to educate our state legislators.

AB 5/Dynamex Primer

Borello Test: Refers to a 1989 California Supreme Court decision that resulted in an 11-factor test to determine contractor status, primarily focusing on “control.”
Dynamex: A 2018 California Supreme Court case that resulted in application of the “ABC Test,” the classification basis embodied in AB 5 that is far more stringent than the Borello Test.
ABC Test: Under the ABC Test, a worker is presumed to be an employee unless all three of the following conditions are true:

  1. That the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under contract for the performance of the work and in fact;
  2. That the worker performs work that is outside the usual course of the hiring entity’s business; and
  3. That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
Notes
  1. Statement of Position Regarding California Assembly Bill 5 and Request for Exemption, http://bit.ly/ATA-AB5.
  2. Coalition of Practicing Translators and Interpreters of California, http://coalitionptic.org.
  3. Find Your California Representative, http://findyourrep.legislature.ca.gov.
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