Two months after August’s Leaders Forum and Capitol Hill visit, the Joint National Committee for Languages (JNCL) has prepared the following Fall Awareness Campaign Kit for the members of the Association of Language Companies (ALC) to follow up with their representative offices on the matter of independent contracting. Download the kit.
The kit contains three items of interest:
One-pager, a background summary of the origins, current practices, and desired outcomes. This document is for your own information and for printing and distributing by hand.
Sample letter to congressional staffers. This document is for you to email to staffer/representatives’ offices.
Sample talking points to guide you when calling congressional offices. This document is for you to reference when speaking on the phone with staffers at representatives’ offices.
As the one-pager states, JNCL’s recommendation is that the government provide one clear path to compliance for businesses. The California legislature can accomplish this by updating its wage orders to clarify that “knowledge-based industries,” like the language industry, should be exempt from the narrowest of employee classifications.
California has the strictest interpretations of the ABC rule, which is why lawmakers should expand the “B factor” to include an “or” to allow workers to perform a similar function as the hiring company’s “usual course” of business if it is in a different location:
Current “ABC” language: (B) The work they perform falls “outside the usual course” of the hiring company’s business;
Recommended “ABC” language: (B) The work they perform is either: a) outside the usual course of the hiring entity’s business; or b) outside all the places of business of the entity.
Follow these steps if you do not have contact information for your representatives’ offices:
On my recent trip to Sacramento, California, I recently met with the Chief Justice of the California Supreme Court as well as attorneys specializing in employment law in the post-Dynamex environment (Dynamex Operations West, Inc. v. Superior Court of Los Angeles, No. S222732 [Cal. Sup. Ct. Apr. 30, 2018]). While it would be inappropriate of me to delve into the legal issues that were raised, I want to share with you some of the general discussion and thoughts on what is to be done.
How the California Legal System Operates
No one knows how the new ABC test incorporated within the Dynamex decision will be applied in any industry, let alone ours. One of the questions raised was, "How do you treat an independent contractor who works for multiple companies?" The current thinking is that work for multiple employers, though it was not directly addressed in the Dynamex decision, would not be perceived as a bar to reclassification.
A second question: "Would the fact that an independent contractor worked only a few hours per month or per year preclude them from being reclassified as an employee?" The consensus answer was no. An independent contractor who would otherwise qualify as an employee—for a few hours or a few thousand hours—would be treated the same.
A third question: "Would the department of labor and other agencies of the state government utilize the same test for classification?" The answer is that each state agency would be free to utilize its own evaluative procedure in reaching a judgment on whether or not an independent contractor should be reclassified as an employee.
These questions, and others, are expected to be decided at the administrative level or, ideally, in the California state legislature. Interestingly, the current legislature decided there was insufficient time this year to address these complex issues. This was seen as a euphemism for “too hot to handle in an election year.” While some saw this delay as a plus, it may actually prove to be a negative in the larger political context of California.
The ultimate fallout from the Dynamex decision will depend on the political environment. In 2019, the California State Legislature will likely be significantly more favorable to labor unions and, by extension, less favorable to business.
Moreover, and perhaps more significantly, the new governor, who will likely be a Democrat, will undoubtedly be less conservative than the current Democratic governor, Jerry Brown, who has reached his term limit. The net result of this political change will be a state political environment that is not likely to provide broad protection from the Dynamex decision.
There is another wrinkle to the politics of the Dynamex decision. The decision, and others like it, will most likely wind up before the U.S. Supreme Court. My understanding is that the Dynamex decision will be appealed. In the context of the new composition of the court, it is likely that the Dynamex decision will be modified, if not overturned.
Another area of political uncertainty in 2019 and beyond is that there will be one or more proposals put on the California ballot to either enact or overturn the Dynamex decision. This may result in an amendment to the California State Constitution to protect the gig economy and put it out of reach of judicial decision.
Lobby for Safe Harbor
ALC needs to organize a lobbying effort of its own to carve out a safe harbor for interpreting, translation, and related disciplines within the language services industry. We cannot rely on a business coalition to salvage our relatively small corner of the independent contractor market.
There are now multiple states that are either judicially or legislatively following a similar pathway to reclassification of independent contractors. States mentioned in the meeting include, but are not limited to, Arizona, Illinois, Massachusetts, Rhode Island, and Vermont. Reclassification is not a California-specific problem; it's an industry-wide problem. And, it is one that will not be solved by individual action. I respectfully suggest that ALC be reconstituted to allow for active lobbying, and that we all reach into our pockets to fund a national lobbying effort.
Victor Hertz is president of Accredited Language Services. He can be reached at email@example.com. Follow him on Twitter @VictoratALS.
With the end of California’s 2018 legislative session on August 31, action on Dynamex is expected to fizzle until next January. According to reports, leaders in the Senate and Assembly, Senate President Toni Atkins, and Assembly Speaker Anthony Rendon have given no indication of their willingness to provide a clear path to compliance before the year’s end, leaving an estimated 2 million California workers—and countless business leaders—confused and agitated.
Politically, Dynamex plays well for pro-worker rights groups (i.e., Democrats who traditionally rely on Union votes) in the run up to election season. Democrats hold a supermajority in California, and they are looking to maintain power with this win. However, pro-business groups are highlighting the stories of independent contractors, which has thrown a wrench into a traditionally binary political feud. One of their indispensible data points is that 80% of nationally surveyed independent contractors prefer the flexibility afforded by working for themselves.
Coverage of the issue has been confined to California’s relatively strict interpretation of the ABC test. However, several other states with strong Democratic legislatures have considered updating their wage order to mirror California’s in 2018. We will continue to provide more updates as they occur.
To reiterate, JNCL’s recommendation is that the government provide one clear path to compliance for businesses. The California legislature can accomplish this by updating its wage orders to clarify that “knowledge-based industries” like the language industry should be exempt from the narrowest of employee classifications. California has the strictest interpretations of the ABC rule, which is why lawmakers should expand the “B factor” to include an “or” to allow workers to perform a similar function as the hiring company’s “usual course” of business if it is in a different location:
Current “ABC” language:(B) The work they perform falls “outside the usual course” of the hiring company’s business
Recommended “ABC” language:(B) The work they perform is either: a) outside the usual course of the hiring entity’s business; or b) outside all the places of business of the entity
In California, JNCL has reached out to the I’m Independent Coalition and the California Chamber of Commerce to see how we might work together to share our story. We are also reaching out to the Sacramento Bee to include the language industry in upcoming coverage. On Capitol Hill, we continue to meet and rely our message to key offices.
WASHINGTON, DC -- On Wednesday, leaders from the language service industry gathered on
Capitol Hill to sound the alarm over new, “disruptive” employee classification regulations that
threaten to upend the $45 billion-per-year industry’s business model.
Over 50 language industry professionals attended the Association of Language Companies’
(ALC) policy summit at the Center for Applied Linguistics to strategize an industry-wide
response to the recent California Supreme Court ruling which narrowed the definition of who
can be classified as an “independent contractor.” All agreed that specialist-industries like the
language industry have reasons to be worried.
I hope everyone is staying cool! Now that summer is in full swing, I’m turning my air conditioner up and turning my attention toward the in-progress standards in development within the ASTM F43 committee.
While drafting the individual Translation and Interpreting standards, one of the most critical questions that has arisen is “what criteria should be used when certifying a multi-language company?”
Consider the following: Interpreting is currently provided in at least 200 languages and dialects. This represents 40,000 potential dyads (pairings) of languages. If we tested each dyad, it would be impossible for any company to qualify. Moreover, many of these dyads are effectively empty sets. The need for Czech-to-Navajo translation, for example, is vanishingly small.
Given the above, how can we certify a multi-language entity?
A number of ideas have been proposed within the drafting committee. And while we haven’t yet reached consensus on any one of these proposals, several interesting ideas have been put forward.
If you have any contributions or ideas, they would be most welcome.
It seems reasonable to me that, at a minimum, we could designate certain languages as “core” languages. The United Nations has six official languages: Arabic, Chinese, English, French, Russian, and Spanish. To those six, I propose adding German, Italian, Japanese, and Korean. I think it’s fair to say that these 10 languages combine to represent the lion’s share of translation and interpreting assignments worldwide and therefore, would make a good test for certification.
However, this is just one possible approach. If you have any suggestions, please do not hesitate to send them to me at firstname.lastname@example.org.
Accredited Language Services
The past two months have seen a number of developments affecting our industry. Foremost among them is the Dynamex v. California decision. A group of California based Language Service Companies, led by DLS Interpreting’s CEO, Naomi Bowman, has been working to understand the case, its implications, and how to respond. JNCL-NCLIS and ALC are working with Naomi and her colleagues, many of whom are owners ofALC member companies, to address this challenge.
For ALC, and for the language industry, it’s time to get smart about employee classification. While we work in DC to push for a clear path to compliance, and for sensible regulations, especially in terms of the Unemployment Act and its implementation at the state level (which drives the vast majority of employee classification issues), ALC members should avail themselves of the resources on the ALC website, and should definitely plan on attending the ALC Washington Leaders’ Forum on August 8th at the Omni Shoreham in Washington, D.C., as well as the UnConference in Huntington Beach, January 17-19, and next year’s ALC Conference, May 1-4, also in Washington, D.C. JNCL-NCLIS is partnering with ALC in the Washington Leaders’ Forum, and will be partnering on advocacy events at both the UnConference and the Annual Conference. But there’s more - the UnConference allows you to network with other C-level leaders to learn and improve, and the Annual Conference has featured employee classification and labor law issues for the past several years. We owe ALC do-founder Bill Graeper a huge debt for raising this issue some 15 years ago, and staying on it for so long, but now is the time to get smart!
In more positive news, the Promoting Value Based Procurement Act of 2017 has been incorporated into the House version of the National Defense Authorization Act for 2019, in shortened form. The key provision reads:
(c) AVOIDANCE OF USE OF LOWEST PRICE TECHNICALLY ACCEPTABLE SOURCE SELECTION CRITERIA IN CERTAIN PROCUREMENTS.—To the maximum extent practicable, the use of lowest price technically acceptable source selection criteria shall be avoided in the case of a procurement that is predominately for the acquisition of—
(1) information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness services, or other knowledge-based professional services;
This applies to the whole Federal Government, and has been passed by the House of Representatives. Our next step will be to demonstrate to the Congress that what we do is indeed a “knowledge-based professional service,” and that work begins with you on August 8th!
Make Your Voice Heard Join ALC in Washington, D.C., on August 8!
Be part of ALC’s first Washington Leader Forum on August 8, 2018, in Washington, D.C. Held in partnership with the Joint National Committee for Languages (JNCL), this Forum will convene leaders in the language industry to:
Learn about federal policy and regulatory issues facing the industry—including employee classification and government contracting—and what is being done to address them.
Meet with members of Congress and Executive Branch agencies with jurisdiction over issues of relevance.
Network with fellow industry leaders to strategize solutions to shared concerns.
Watch this video to hear from ALC President Rick Antezana on the importance of your participation in this event.
For more information and logistics for this important forum, visit the event website.
Registration is limited to 50 participants. The deadline to register is Friday, July 27, at 5:00 pm ET.
Welcome to the unofficial start of summer. With the daylight hours growing longer and the temperatures rising, many of you may be thinking of vacation plans. Ironically, that’s not what’s going on in the ASTM.
Within ASTM F43, there are a number of new initiatives being worked on. I thought as a change of pace I would draw your attention to these initiatives insofar as they impact Language Service Companies (LSCs).
Currently there are standards being written in subcommittees on terminology, translation and interpreting.
Within translation, there are in fact two standards being drafted: one dealing with the metrics by which translation quality might be measured, and the other dealing with translation in general. For those who provide translation services, this is of immediate import because what our colleagues are writing will make it very difficult for translation companies to operate.
For example, the current draft revision of Standard F2575 specifies minimum qualifications for employees working on a translation project. The subcommittee also has a section on compensation that defines guidelines for remuneration, which is quite intrusive. Further, there is language setting specifications for deliverables.
These three examples are not exhaustive. They are merely indicative.
Now, this is not to say that there aren't useful aspects to the work being done. There are. Moreover, if these standards were being drafted as Guides and not as prescriptive Practices, there would certainly be utility in discussing aspirational concepts.
But that is not the case. As matters currently stand, the translation subcommittee F43.03 is writing requirements (i.e. Standard Practice) as opposed to suggestions (i.e. Standard Guide). This means LSCs would be required to cede a great deal of control over who they hire, how much they pay, and how they prepare final deliverables.
I offer these comments not in a derogatory sense, but in the interest of transparency.
It is my sincere hope that the good work being done by the subcommittees continues. The prescriptive overreach, however, would literally kill companies. The onerous standards currently being contemplated within F3.03 not only are examples of extraordinary overreach, but also represent a metaphorical straitjacket that interferes with the functioning of LSCs in a real-world, competitive environment.
With all this in mind, I implore each of you to take an active role within the ASTM. We need your involvement and your participation in the collaborative processes, so that the standards being written (whether Guide or Practice) reflect the concerns of those affected by them. Equally importantly, we need your votes as each of these initiatives are balloted. As LSCs, we can’t afford to sit on the sidelines. Your livelihood is at risk.
Posted By Administration,
Thursday, May 10, 2018
Updated: Wednesday, May 9, 2018
Rockville, MD (May 10, 2018) — The Association of Language Companies (ALC) appointed its new president, officers, and directors at the 2018 ALC Annual Conference, held in Scottsdale, Arizona, April 25–28, 2018.
ALC’s new president is Rick Antezana, partner, Dynamic Language. “It’s a huge honor to be part of the group setting the direction for a great association like the ALC over the next year,” Antezana said.
“Having gotten to know the community since becoming a charter member 16 years ago, I am excited to team with this board to drive forward the initiatives we have planned. In particular, we’re looking for ways to bring more value to our members through educational programs that will help not only language company executives, but their staff members as well. We also want to establish deeper connections across the entire range of the industry, including with other organizations, vendors, and partners. Finally, we will be a leading force in helping to protect members of the entire U.S.-based language industry by helping to organize the effort to create clarity in the law and drive forward sensible legislation as it relates to Language Service Companies (LSCs) and Language Workers.”
The members of the 2018–2019 board of directors are as follows:
Rick Antezana, Dynamic Language – President Susan Amarino, Liaison Multilingual Services, Inc. – Vice President Gabriela Lemoine, Hispano Language Advisory – Secretary Kathleen Diamond, Kathleen Diamond & Co. – Treasurer Chris Carter, aLanguageBank – Immediate Past President Lelani Craig, CommGap International Language Services – Director Kevin McQuire, Atlas Language Services, Inc. – Director Melissa Meyer, Barbier International, Inc. – Director Bryan Montpetit, MontLingo Language Services, Inc. – Director Shamus Sayed, Interpreters Unlimited – Director Paul Tracy, Partners Interpreting – Director
The Association of Language Companies (ALC) is a national trade association representing businesses that provide translation, interpretation, localization, language testing, and language training services in the United States. ALC promotes the professional stature and economic position of the language service industry in the United States through industry advocacy and professional development.
The 2018 ALC Annual Conference in Scottsdale, Arizona, was amazing, and I’m sure we’re all looking forward to 2019 in Washington, D.C.! The Annual Conference and the UNConference present excellent opportunities to recharge, connect with peers in the industry, share best practices, and learn about how everyone is facing the latest challenges. Many thanks to all who attended the “Futureproofing” plenary and took the time to chat at the conference!
One of the perennial challenges facing our industry is the uneven and capricious auditing of independent contractors. While we are making progress at the national level to reduce the incentives provided by the Department of Labor to pursue misclassification issues and to establish consistent guidelines for compliance under the Unemployment Act, state governments continue to look at employee classification. In California, where many ALC members have prevailed in their appeals of misclassification audits, a recent court ruling threatens all of our progress. We’ve just started monitoring this development.
In Washington, D.C., we’ve had very productive meetings with the Department of Labor on a wide range of issues, including the methodology of the Bureau of Labor Statistics and its prevailing wage determinations for our industry, the enforcement of the Service Contracting Act, and transitioning veterans into the language industry. We will provide updates as these initiatives move forward. We are still in the early days of the Trump administration, but as I said in Scottsdale, there’s a great deal of substantive support for the business world in D.C., and we will take every advantage of it.
Submitted by Bill Rivers, Ph.D., Executive Director Joint National Committee for Languages - National Council for Languages and International Studies