From the President
California Assembly Bill 5 (AB5) has been in the news a great deal lately. This bill seeks to solidify and codify the so-called “Dynamex” decision on the classification of contractors and employees in California.
The Dynamex decision was a significant departure from the generally accepted definition of contractors and employees. It created a standard whereby workers are presumed to be employees until proven otherwise, and—perhaps more strikingly—specified that contractors must “perform work that is outside the usual course of the hiring entity’s business.” In practice, this means that a translation or interpreting company could hire a freelance web designer, but not freelance translators or interpreters.
Under AB5, the hiring entity must establish each of the following three factors, commonly known as the “ABC test”:
- That the worker 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; and
- That the worker performs work that is outside the usual course of the hiring entity’s business; and
- That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
At first, ATA deliberately remained neutral on this issue while gathering more information about its potential impacts. For instance, we know that while the majority of our members are freelancers by choice, some would prefer to be employees if given the opportunity to do so. However, as AB5 progressed through the legislative process, we began hearing from ATA members in California about significant negative repercussions, most importantly a direct loss of work. Given that California often leads the U.S. in legislative changes, we felt that it was time to amend our position and clarify the complexities of the language services market pertaining to freelance translators and interpreters.
Board members Madalena Sanchez Zampaulo and John Milan led the effort to write an ATA statement of position on AB5, requesting an exemption (or “carve-out”) from this bill for translators and interpreters who choose to be freelancers. You can read the full statement at http://bit.ly/ATA-AB5. The most important points of our position are:
- AB5 is overbroad: In attempting to protect workers who are misclassified as contractors, it lumps them together with those who have made a deliberate choice to provide freelance services.
- Translators and interpreters who work for a single employer that controls their working conditions, schedule, pay, etc., should have the right to be considered employees.
- The majority of ATA’s members work for multiple clients: they decide when, for whom, and how they want to work, and how much to charge. They should have the right to remain independent contractors.
With this statement, we hope that the California Assembly will grant an exception to AB5 for our members who choose to be freelancers. We support the right of all our members to create their own business arrangements, and we feel that if AB5 is enforced in its current form, most language services companies in California may simply choose to work with freelancers outside California. We’ll keep you updated as this initiative progresses!