Southern California Registry of Interpreters for the Deaf


SCRID is an affiliate chapter of the Registry of Interpreters for the Deaf (RID). It is the mission of Southern California Registry of Interpreters for the Deaf to provide local forums and an organizational structure for the continued growth and development of the professions of interpretation and transliteration of American Sign Language and English.

California Assembly Bill 5 (AB5)


More information regarding AB5 to soon come out dually in ASL and English. As this is a developing situation please plan to expect regular updates to this page, so set your reminders to check back one week from today!

Last Updated: 14 October 2019

First Town Hall Meeting is Scheduled!

Saturday 26 October 9:30 - 11:00 am

OC Deaf, 6022 W Cerritos Ave, Cypress CA

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*Disclaimer: The authors of this page are not attorneys and are doing their best to gather information and accurately reflect events as they occur. It is the hope this page will be a source for information sharing and will spark discussions to guide our actions. Legal advice is being sought to help progress in actions being taken.

The full text of the bill may be found here: CA AB5 Full Text

or copy and paste into your browser: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB5


Information

Summary:



General understanding of this bill is that it was written in response to concern over companies, especially in the gig economy, who may be taking advantage of the independent contractor (IC) status in their business relationships. Uber and Lyft are the two companies most of us are aware of at the center of the discussion that drew the authoring of this bill. The bill was signed into law by Governor Newsom 18 September 2019 and will become effective 01 January 2020.

As it relates to the interpreting & captioning professions, it seems this law will no longer allow interpreting/CART agencies to work with interpreters/captioners as ICs. They may instead hire the provider as an employee, or potentially enter into a business-to-business relationship with a provider who has formally set up their own business. There is some grey area in the law, subject to further scrutiny and interpretation. For example the business-to-business relationship may or may not be effective in our field due to a question of who is receiving the provider services; and agencies whose business model is validly that of a referral service may be able to continue to classify providers as ICs. Additionally, it seems providers may continue to work as ICs if they are working directly with the requestor and the work being done is not in the usual course of the requestor's business.

Many professions have been exempted from this new law, but interpreters/translators/captioners(CART) have not been included in these exemptions.

A little background... 


AB 5 codifies a 2018 ruling of the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903. Under this new law, most California workers are presumed to be an employee for purposes of the Labor Code, the Unemployment Insurance Code, and for the wage orders of the Industrial Welfare Commission. If effect, while it does simplify the test used to determine a worker's status, it makes it more difficult for CA workers in general to be classified as ICs.

Under the Dynamex ruling, as of April 2018 the Borello test, the standard for establishing independent contractor (IC) status since 1989, has been replaced by the ABC test. This test stipulates the following criteria must be met to classify a worker as an IC:

1) The company must not be able to control or direct what the worker does, either by contract or in actual practice; 

2) the worker must perform tasks outside of the hiring entity’s usual course of business; and 

3) the worker must be engaged in an independently established trade, occupation, or business.

To be clear, the ABC test has been the standard since April 2018 due to case law. The passing of AB5 does not introduce a new standard, but rather moves case law into statutory law, in effect strengthening its power. It is the second criteria in the ABC test that is generally seen to pose the most risk to the current business practice of interpreter & CART providers.


Informational Links:


“California Assembly Bill 5 (2019),” Wikipedia: https://en.wikipedia.org/wiki/California_Assembly_Bill_5_(2019)?fbclid=IwAR0eP_yPfqgaJwt5E5808dFifPhsWW6WSKUGqCED62eeciJwEdvXL3u-a9E

“Deconstructing Dynamex,” Los Angeles Lawyer, Sep 2018: https://www.lacba.org/docs/default-source/lal-magazine/2018-test-articles/september2018testarticle.pdf

“Independent Contractors May Actually be Employees,” American Bar Association, 23 Nov 2018: https://www.americanbar.org/groups/litigation/publications/litigation-news/featured-articles/2018/independent-contractors-might-actually-be-employees/

"AB5 gig work bill: All your Questions Answered," San Francisco Chronicle, 16 Sep 2019: https://www.sfchronicle.com/business/article/AB5-gig-work-bill-All-your-questions-answered-14441764.php

"California has a new law for contract workers. But many businesses aren’t ready for change," LA Times, 29 Sep 2019: https://www.latimes.com/business/story/2019-09-27/ab5-independent-contractors-how-businesses-are-responding

"California's contract worker law could add health coverage for some but put others at risk," LA Times, 04 Oct 2019: https://www.latimes.com/business/story/2019-10-04/california-law-contract-work-health-coverage-uncertain

"California's contract worker law could add health coverage for some but put others at risk," LA Times, 04 Oct 2019: https://www.latimes.com/business/story/2019-10-04/california-law-contract-work-health-coverage-uncertain



A good basic explanation of California’s legislative process and how to take part: 

“The California Legislature 101,” Indivisible CA: State Strong, 2019https://www.castatestrong.org/guide/


Our Responses

Please share with DHHDB communities, organizations and professionals, service providers, advocates, and others you feel could support the DHHDB communities in these critical efforts.

Considerations:


This bill raises a complex issue in our community and we encourage discussion on the topic. SCRID has active discussions on its facebook page and is in active discussion with stakeholders, senators, and lobbyists. We feel the bill will do more harm than good to the Deaf community and we are currently exploring either a clean-up bill to be introduced to our legislators when they return to session in January 2020, or a clarifying description added to the bill itself by Governor Newsom.

With the bill having been signed, our understanding is that to obtain an exemption there are two options: either a "clean-up bill" would need to be introduced and passed through our legislature, or an amendment to the bill could be made. We will need senatorial support of our request for the exemption under either option. The senators in communication with members of the CART community we're working with have informed us they are interested in supporting the exemption if they see enough support from Deaf, DeafBlind, and Hard of Hearing (DHHDB) consumers, interpreters/translators/captioners, and laborers unions. Because this bill was introduced to protect workers from potential abuse by businesses (agencies) and has financial impact on those businesses, senators are well aware that agencies desire the exemptions and have made it clear they are not interested in agency requests for support. Again, they want to hear from the consumers and providers. As a community federally protected by the ADA whose rights are endangered in this bill, the DHHDB communities' input should hold more weight with legislators than would input from the general public. Once the exemption request is prepared, we will let you know and ask all DHHDB individuals, interpreters, and captioners to contact their senators to request their support.

Professional exemptions have been written into the bill. Some simply exempt the profession from the ABC test and allow that profession to continue to use the Borello test. Others add additional criteria in order to obtain the exemption from the ABC test. It is important to note that it is expected the list of exempt professions will grow as the law is adapted moving forward. Many professions are currently working toward added exemptions. From stakeholder discussions thus far it seems individual interpreting providers would like to consider criteria tailored to our profession that seeks a more equitable balance of power in the agency/provider relationship. This option needs to be explored further with attorneys, lobbyists, and senators.

While we wish to preserve the option of the agency/IC relationship, we do recognize it is not always a perfect one. It is crucial that as providers we educate ourselves and claim the power we have in this realm. Both agencies and providers must come into relationship in a manner true to the independent contractor role and honor the value each brings to the table. This bill, which we feel causes more problems than it may erase (not fix), may be the perfect opportunity for us to renew our commitment to understanding the actual nature of the IC role and ensuring that both agencies and providers honor the benefit it brings to all stakeholders. In doing so we will only improve the quality of services we're able to provide to the DHHDB communities.

Actions Being Pursued: 


As mentioned above, a collective of stakeholders is moving toward either an independent clean-up bill or an AB-embedded clarification. As we do so, it is critical to center the focus of this work on DHHDB communities, organizations, and professionals, as well as seek input and guidance from service providers. Currently we've reached out to local Deaf organizations about setting up collective town hall meetings. We'll keep you posted once these are scheduled, and hope for your active participation in these efforts.

Thus far this coalition of stakeholders has tentative support of two senators, and are in the midst of contacting a key senator who is known as a champion of the individual worker and would be a great asset to our pursuit. We will keep you posted as this potential unfolds.

Timeline: 


While the 2019 legislative session has closed, it is now that legislators are in their offices working on bills for the 2020 session, opening 06 Jan. It is critical to schedule and participate in educational sessions, town hall meetings, etc as soon as possible, to allow time to consolidate feedback and draft the proposed language, whether it be for a separate clean-up bill or an embedded clarification. A coalition of community-based organizations, professional organizations, consumers and advocates is working within their respective realms to schedule and host these discussions.

Source of the Request for Exemption: 


Legislators have made it clear they wish to hear from impacted consumers (DHHDB) and individual service providers. It must be you who reach out to your Senator as well as the Senators already enlisted in our support, to express your concerns and your desire for an exemption for interpreters/translators/captioners. Please see the contact information below. If possible to call, it seems that phone calls are taken with more weight than emails.

Potential Impacts as We See Them:


  • Confusion: A great deal of uncertainty exists in the bill as written, leading to confusion for service providers and agencies alike in attempting to follow the law. For example, agencies attempting to claim exemption through a referral service carve-out may be disallowed from doing so under Section 2 (e) (1) (D): “The service provider delivers services to the client under service provider’s name, rather than under the name of the referral agency.” Those wishing to claim an exemption through the business-to-business route may be disallowed under Section 2 (e) (1) (B): “The business service provider is providing services directly to the contracting business rather than to customers of the contracting business.” There is uncertainty about whether either of these approaches are legally viable, leaving the only clearly legal option that of using the employee status.
  • Deteriorated Services to the Deaf/Hard of Hearing/DeafBlind (DHHDB)
    • The added difficulties caused by losing the option of agency/IC relations has viable potential to lessen service provider rates without the provision of benefits, creating financial difficulties, pushing providers to out-of-state work, and decreasing the pool of available service providers; create artificial scarcity through part-time caps on hours worked; create inequitable financial burden for Deaf interpreters and specialty interpreters, decreasing both earnings potential and coverage of consumer needs guaranteed under the ADA; and limit an agency’s ability to reasonably provide an interpreter they work with only a few times per year, thus limiting the ability to appropriately fill assignments. Compounded, these impacts have viable potential to lower the availability of accommodations as well as the ability to provide effective accommodations in specialty situations. *Note: A questionnaire will soon be sent to agencies requesting information on anticipated response to AB5. Results will be compiled and shared, helping us to better understand the likelihood of these potential impacts.
    • The added financial burden to employers, potential employers, doctors, lawyers, educators, and all other venues of life in which Deaf and hearing people interact with the support of interpreters/captioners (ie virtually all venues of life) will have negative implications on the view of the hearing requestor in their dealings with Deaf people. Already seen as financially burdensome by many, this legislative action will serve to raise resistance in hearing requestors to working with Deaf people.
  • ADA Violations: With added scheduling issues requestors will be at elevated risk of being out of compliance with this federal mandate. 
  • Financial Impacts
    • Greater cost to service providers as more must establish their own business (ie initial & annual fees, minimum taxes, etc)
    • Greater cost to agencies having to transition ICs to employees, leading to higher fees and/or lower interpreter/captioner pay. This applies also to publicly funded schools and institutions not budgeted for the additional expense.
    • Both of these impacts are especially burdensome for DHHDB individuals working as interpreters and/or agency owners. Already struggling to gain traction in this field, work available to Deaf Interpreters is unfortunately and inappropriately scarce. The requirement to establish their own business is an inequitable financial hardship, while the alternative employee status lowers flexibility and availability. Those working as agency owners are typically local and small business, therefore will feel greater financial strain in the transition to an employee-based model for hiring. Of course, these impacts are layered upon the already burdensome daily impacts as a consumer.
  • Artificial Scarcity: With the loss of flexibility in relational options, scheduling of providers will likely become more difficult, adding stress to a system already struggling to cover all assignments needed. Specialized providers, such as Deaf Interpreters and multilingual interpreters, will be especially impacted.
  • Loss of the flexibility and independence of IC work consciously selected by many in the field according to preference. Loss of negotiating power for ICs moving into employee status.
  • Loss of providers wishing the flexibility of IC work. A portion of those wishing to establish a business or to be an employee will transition to other professions and/or relocate out of state.
  • Endangerment of local, small business agencies more in tune with local needs, yet unable to compete with larger agencies in this less flexible environment.


*Clarification on financial impacts and agency expenses:

SCRID was asked for clarification of the second bullet point under Financial Impacts, regarding the potential of increased agency fees and/or decreased service provider pay. This is due to common business practice of recouping, rather than absorbing higher expenses. While agencies are not responsible for the expense of paid sick leave or matched social security contributions when working with an IC, they are responsible for these expenses for every employee. In the case of interpreters/captioners, agencies can recoup these new employee-related expenses by charging higher fees for services, and/or paying lower fees to service providers.




Licensure: 


We realize that in the interpreting and CART fields no licensure is required to work in the state of California. Many wish to see licensure established as a much needed means of quality control that has the potential to greatly improve the lived experience of DHHDB consumers. While this is a critical issue to be addressed, with or without the impacts of AB5 the current lack of qualified providers in the state remains. Licensure is an endeavor that requires several years to get passed. While not losing sight of the need for qualified providers, given the time crunch of AB5 becoming effective in January 2020, we will be keeping the two issues separate. 


                    Senator Contact Information:

                    • Announcement of specific supporters coming soon!
                    • Find Your Local Senator 
                    http://findyourrep.legislature.ca.gov/


                    Letters Submitted to the Legislature Prior to AB5 Passing:

                    SCRID Ltr AB5 190827.pdf

                    RID Letter on CA AB5 August 2019.pdf

                    ALC - Worker Classification Statement.pdf


                    Questions about how you can be more involved? Comments you'd like to be considered?

                    Contact president@scrid.org. Please know this work is being done on a volunteer basis. Replies may not be immediate, but we will respond as quickly as possible. Thank you for your understanding.



                    Additional information continues to be compiled and posted to this page. Please don't forget to check back here and discover what you can do to help approach this new situation which will have great impact upon the interpreting & captioning fields, and as SCRID believes, a detrimental impact to our ability to coordinate coverage of assignments, especially those requiring Deaf Interpreters or non-majority language interpreters, thus harming individuals in the intersectional Deaf communities we serve.


                    Thank you for participating in this critical legislative action that will have an impact on Deaf peoples throughout the State of California!


                    Please remember to check back as this page is still under construction.

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