If you work as a freelance translator or interpreter in the state of California, chances are good that you are familiar with the recently-passed Assembly Bill No. 5 (AB5) regarding independent contractors. And if you don’t work in the state of California, this law’s passage could still have implications for you in the future. Other similar legislative efforts have been seen in other locations across the United States.
Press coverage related to the bill often mentions the “gig economy,” presenting those who work for ride-sharing services like Uber and Lyft as the beneficiaries of the new law.
However, translators and interpreters could also be affected by this law. They are not exempt from the law as written as of October 2019, meaning they could be considered employees instead of independent contractors.
While the outcome for freelance professionals in certain fields like translation and interpretation is a bit uncertain, one thing is certain: The California governor has signed the law that the state legislature approved.
So what is this new law, AB5?
AB5 aims to change the way employees and independent contractors are classified, using as a basis a recent California Supreme Court decision. According to the “Legislative Counsel’s Digest” portion of the bill’s text, AB5 uses “[e]xisting law, as established in the case of Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018)” to determine whether a worker is an employee or an independent contractor. That ruling “create[d] a presumption that a worker who performs services for a hirer is an employee.”
Because of that ruling, “[e]xisting law requires a 3-part test, commonly known as the ‘ABC’ test, to establish that a worker is an independent contractor.”
What is the ABC test?
It’s the three-part test required to determine if a worker is an employee or an independent contractor. As the bill’s digest portion states, “a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates” that the worker passes all three of the items in the ABC test. Section 2 of the bill defines those items as follows:
“(A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
(B) The person performs work that is outside the usual course of the hiring entity’s business.
(C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.”
Why was this bill created?
Section 1 of the bill’s text references the Dynamex Supreme Court decision, in which “the Court cited the harm to misclassified workers who lose significant workplace protections, the unfairness to employers who must compete with companies that misclassify, and the loss to the state of needed revenue from companies that use misclassification to avoid obligations such as payment of payroll taxes, payment of premiums for workers’ compensation, Social Security, unemployment, and disability insurance.” Section 1 went on to state that the Legislature wanted to “codify the decision of the California Supreme Court in Dynamex and would clarify the decision’s application in state law.”
According to the text of the bill, the Legislature wanted to “ensure workers who are currently exploited by being misclassified as independent contractors instead of recognized as employees have the basic rights and protections they deserve under the law, including a minimum wage, workers’ compensation if they are injured on the job, unemployment insurance, paid sick leave, and paid family leave.” In addition, the Legislature noted, “misclassification of workers as independent contractors has been a significant factor in the erosion of the middle class and the rise in income inequality.”
Does this bill apply to everyone?
No. The bill was passed with certain professions being exempt, including surgeons, architects, lawyers, engineers and others, some with limitations.
However, as of October 2019, translators and interpreters are not exempt.
The future for those in such non-exempt fields is uncertain, as a recent Los Angeles Times article described.
The American Translators Association (ATA) has issued a statement arguing for an exemption for translators. In the statement, the ATA wrote that the bill would “improperly classify the majority of our members as employees, when in fact they are independent contractors, by choice, and work on a freelance basis with multiple clients, by design. Without an exemption, this bill would unduly lump together these independent professionals with individual workers who have not made a deliberate choice to provide freelance services.”
What the future holds for translators and interpreters remains to be seen.
Author: Melissa Kamenjarin
Melissa is a Success by Rx copywriter and Spanish/English translator, writer, editor and proofreader specializing in educational materials, health insurance, non-profits, and published fiction and non-fiction books, blogs and websites. Melissa is the Secretary and blog writer for ATISDA (Association of Translators and Interpreters in the San Diego Area). An American Translators Association (ATA) member, she is also the Copy Editor for the ATA Medical Division’s publication, Caduceus.