UPDATE: August 26, 2020 – With the passage of AB2257 by the California senate on August 25, 2020, freelance translators and interpreters have now joined the list of professions exempt from AB5. This means that, with some restrictions, they they are no longer required to be registered as employees of their LSP clients, a change that should help reverse the flight of outsourced language service jobs from the state. Although this represents a major victory for lobbying efforts on behalf of freelance language professionals, new certification requirements for interpreters may pose a challenge for some, and the US-based ALC is lobbying for an extension of the period before certification becomes mandatory in California. In addition, other jurisdictions have considered laws and regulations similar to AB5, so the issues discussed in this blog post are likely continue to affect the language industry going forward.
The COVID-19 pandemic represents a potentially existential challenge for many language service companies. Many companies are experiencing a decline in revenue due to COVID-19 as the effects of mandatory business closures ripple through the economy. However, others, particularly MT-centric providers, have seen a rapid uptick in demand in recent weeks.
At the same time, the recent adoption of California Bill 5 (AB5) – commonly known as the “Anti-Uber Bill” – which requires businesses to reclassify many contract workers as employees, has created turbulence for freelance linguists, particularly due to uncertainty around enforcement and potential changes to applicability. Combined with COVID-19 social distancing measures that will affect the working lives of linguists, these are unprecedentedly challenging times for many language workers in California and elsewhere.
AB5 Changed the Game in Early 2020
Long a priority of organized labor and progressive politicians, changing the law with regard to how businesses classify their workers – as employees or contractors – bills like AB5 have sought to extend employment benefits to increasing numbers of workers. In California’s case, the law, which came into force at the new year, required businesses to hire any individual who produces more than 35 pieces of content for them rather than treat them as freelancers. Given the current trend toward smaller and smaller jobs, some linguists can hit this threshold for a few hundred dollars of work. As a result, linguists in California who currently make a living as freelancers had to become direct employees for dozens of companies.
As critics of AB5 predicted, some companies that relied on freelance workers for occasional or piece-based work now refuse to do business in the state. As a result, the American Translators Association, the lobbying group Coalition of Practicing Translators and Interpreters of California, and InterpretAmerica have made high-profile efforts to include linguists in the listing of professions – including truck drivers, architects, graphic designers, and fine artists – that are exempt from AB5. However, so far, these initiatives have had no success and their best chance may lie with challenges to the law in Federal court.
How COVID-19 Changes the Situation
The COVID-19 pandemic highlights both the strengths and weaknesses of freelancers’ employment positions. Many interpreters have already seen their clients cut back on assignments due to cancelled events, health care professionals postponing non-essential care, and courts shutting down due to shelter in place restrictions. Translators experience similar issues with customers postponing or cancelling orders due to economic uncertainty or their production being at a stop. Although we observe a spike in COVID-19 related communications that benefits some specialized linguists, it is likely to deliver only a temporary boost in revenue.
That’s where linguists who are employed by LSPs or buy-side organizations may fare slightly better than their freelance counterparts. They benefit from certain legal protections and sometimes minimum work guarantees. However, most of the work was still set up on an hourly basis, meaning no hours equals no pay.
Interpreters face a particular challenge. The laws that drive much of the legal requirement in the U.S. and elsewhere for language services still remain in effect but interpreters – particularly those that specialize in legal, medical, or community interpreting – are at particular risk from the disease. Their jobs require them to enter environments such as hospitals, jails, and shelters where protection from COVID-19 is especially challenging. Clients are in charge of providing the protective gear and interpreters are typically told not to go if they don’t feel safe. However, interpreters’ sense of duty and the need for a paycheck is pushing many to risk their lives just as health care and emergency workers are doing.
Some of the work has shifted to remote interpreting technologies. In addition, the U.S. has authorized reimbursement for telehealth services through Medicare, which also accelerates the shift to remote interpreting. At the same time, courts and other public institutions are deferring as much work as possible as part of “social distancing,” which means a temporary drop in income for many interpreters active in those areas. For smaller interpreting-centric LSPs that lack remote technology or the resources to float salaries through an extended slow-down, these are challenging times.
Employees or Not, Linguists Are Critical
LSPs as well as businesses and government agencies that contract with freelance linguists must deal with AB5’s consequences and obligations. Although the temptation may be to simply pull out of California under the combined pressure of the law and COVID-19, this approach risks harming both linguists and LSPs at a time when they very much need each other.
Some large companies have realized that they need to step up to the plate to help their freelancers or they risk destroying their ongoing viability. For example, Google has set up a fund to pay its contract and temporary workers if they are hospitalized or forced into quarantine. This level of action may not be feasible for LSPs or small enterprises, but there are other actions they can take to help ensure that their supply chain makes it through this crisis intact and is able to resume work when it is over.
In an upcoming post we will discuss some of the concrete steps that LSPs, buyers (including governments and NGOs), and linguists can take to improve the situation of freelance providers during the current crisis.
The language industry will survive, but many of the structural changes it faces are likely to be permanent. After COVID-19 recedes, linguists and their clients will have to adapt to the changes it introduced. Even if AB5 and similar laws are changed to reflect the working conditions of linguists, the push for better benefits behind them should not stop. The response to the virus and the law have shown how disruptive the situation is for many freelancers, but all parties must take responsibility for their partners’ wellbeing to ensure the long-term survival in the industry.