The ATA Chronicle - November/December 2022 - 10

Currently, more
than 75%
of language
professionals
work as
independent
contractors.
ATA Statement on Employee or Independent Contractor Classification under the
Fair Labor Standards Act
The American Translators
Association (ATA) is
the largest professional
association of interpreters
and translators in the U.S.,
with more than 8,500
members working in over
50 languages.
On October 13, 2022, the
U.S. Department of Labor
(DOL) published its notice
of proposed rulemaking
(NPRM) that puts forward
a restrictive interpretation
of the " economic realities "
test, which is used to
determine a worker's
status as an employee or
independent contractor
for the purposes of the
Fair Labor Standards Act
(FLSA). This restrictive
interpretation would
result in companies, and
even many governmental
agencies, being forced to
classify as employees a
large number of workers
who, under current law,
are properly classified as
independent contractors.
This could have a
detrimental impact on
the livelihoods of our
members, the important
work they do to ensure the
federally protected right
to language access for
millions of Americans, and
our economy.
Many interpreters and
translators work with
language services companies
(LSCs), governmental
bodies, and other clients as
independent contractors.
Current vetted statistics show
more than 75% of language
services professionals are
10 The ATA Chronicle | November/December 2022
independent contractors,
providing knowledge-based,
professional services in
exchange for fees that they
determine and on schedules
that they set.
As we saw in California
when AB 5 was signed
into law, the imposition
of employee status on
independent contractors
did not have the effect
lawmakers desired:
contracts were instead
unilaterally terminated,
and many language services
professionals lost their
livelihoods to linguists in
other states. This, in turn,
had a detrimental impact
on language access for
limited-English-proficient
individuals, which is
protected under federal
law, as they were unable to
access government services
and benefits they were
entitled to due to a dearth
of interpreters.
ATA is concerned about
DOL's rigid, one-sizefits-all
approach to worker
classification, which ignores
what happened in California
with AB 5 and discounts
the concerns of tens of
thousands of professional
freelancers and the dozens
of language professionals
who spoke up during DOL
listening sessions on the
development of this rule in
June of this year.
We urge DOL to consider
the result of a rigid worker
classification test like the
ABC test in California's
AB 5. Despite its aim to help
misclassified individuals,
it ensnared thousands
of legitimate freelance
professionals in its widereaching
net and required
over 100 exemptions in
the subsequent cleanup
bill AB 2257. To date,
hundreds of legitimately
freelance-dominated
professions still struggle
under the constraints of this
unnecessary law. People
have been stripped of their
choice on how to make their
living and balance their
work and personal lives, and
have lost the freedom our
Constitution guarantees all
Americans to life, liberty,
and the pursuit of happiness.
Although the proposed
rule does not contain a strict
ABC test per se, it makes
changes to the economic
realities test and contains a
criterion that is similar to
the most onerous condition
of the ABC test (i.e., the
extent to which the work
performed is an integral
part of the employer's
business). The potential for
overly broad interpretations
of these criteria will
lead to confusion, tie up
determinations in protracted
litigation, and generally
create an environment of
fear, not only for LSCs but
also for linguists wishing
to engage with them as
has been their tradition
and reality. In a sense,
this rule could be more
destructive than California's
AB 5. In the specific case
of our professions, it could
drive multilingual work
offshore instead of keeping
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The ATA Chronicle - November/December 2022

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