The Dynamex Decision and ATA’s Advocacy Role

Within ATA, we try to keep a close eye on federal, state, and local government issues that might affect our members. A recent example is the landmark California Superior Court decision “Dynamex Operations West, Inc. versus the Superior Court of Los Angeles.” The so-called Dynamex decision included a new definition of independent contractors as opposed to employees, with the key provision that independent contractors must “perform work that is outside the usual course of the hiring entity’s business.”

This decision is groundbreaking in that it casts aside the typically-used “Borello” definition of an independent contractor as someone who is free from control or direction by the hiring entity, regardless of the independent contractor’s line of work. Under the Dynamex definition, a language services company would be free to hire a freelance web designer or accountant, but could not hire translators or interpreters as independent contractors. In addition, businesses are now responsible for defending their classification of workers as independent contractors. The Dynamex definition also makes the assumption that all workers are employees unless proven otherwise.

Since the decision, ATA has been asked by various entities to advocate both for and against the Dynamex decision. To date, we have chosen to do neither of these things and instead educate our members about what we see as the pros and cons of the Dynamex decision.

ATA is in an interesting position in that our membership includes translators, interpreters, and language services companies. We feel that the majority of our members who are freelance translators are independent contractors by choice. They do not want to be anyone’s employee, and they work on a freelance basis because they choose to do so, not because they desire in-house jobs and cannot find them. For them, the Dynamex decision is clearly not positive because it restricts the use of their services by California-based companies.

However, at least some of our members who are interpreters are in a completely different position. Many of them work regularly at the same location, through the same language services company, sometimes alongside salaried employees performing essentially the same duties. In some cases, they are asked to wear the language company’s uniform, identify themselves as representing the language company, or distribute the language company’s business cards instead of their own, and so on. Those members feel that the Dynamex decision is very positive. They “do” in fact want to be employees if that option exists so that they can get benefits, not have to pay self-employment tax, and have some protections such as workers’ comp if they get injured on the job, or unemployment insurance if the company no longer offers them work.

We also know that our corporate members may have trouble complying with the Dynamex decision because they simply don’t have enough work to offer an employee position to a translator or interpreter who works in a small-diffusion language. I’ve already spoken with several agencies that feel they will have to exit the interpreting market in California because of the Dynamex decision.

Because ATA is committed to being “the voice of interpreters and translators,” we want to advocate for all our members, and we feel that the Dynamex decision will have both positive and negative repercussions on translators, interpreters, and language services companies. We will continue to monitor the situation and keep you updated! And if you are aware of a government relations issue that ATA should be tracking, please email me at president@atanet.org.

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