NLRB backs in­ter­preters

Con­trac­tor vi­o­lated court work­ers’ rights, la­bor board says

Los Angeles Times - - BUSINESS - By Nina Agrawal

The com­pany tapped by the fed­eral gov­ern­ment to pro­vide in­ter­preters in im­mi­gra­tion court wrongly clas­si­fied em­ploy­ees as in­de­pen­dent con­trac­tors and fired those who spoke out, the Na­tional La­bor Re­la­tions Board said in a com­plaint is­sued Wed­nes­day.

The com­plaint al­leges that SOS In­ter­na­tional, also known as SOSi, mis­clas­si­fied work­ers and en­gaged in un­fair la­bor prac­tices un­der the Na­tional La­bor Re­la­tions Act, in­clud­ing co­er­cion and re­tal­i­a­tion. By mis­clas­si­fy­ing work­ers, SOSi cir­cum­vented la­bor laws that would re­quire it to pay over­time and to pro­vide cer­tain ben­e­fits, such as work­ers’ com­pen­sa­tion.

The NLRB’s com­plaint marks the first time that a fed­eral agency has rec­og­nized the con­tract in­ter­preters as em­ploy­ees.

“At a time when the cli­mate is not union friendly,

this is a ma­jor vic­tory,” said Hilda Estrada of Los An­ge­les, an in­ter­preter who ac­cused SOSi of re­tal­i­a­tion. “I’m elated.”

The Jus­tice De­part­ment — which in 2015 awarded a con­tract to SOSi for up to five years and a max­i­mum of $80 mil­lion — de­clined to com­ment on con­tract in­ter­preters’ em­ploy­ment sta­tus. Kathryn Mat­tingly, a spokes­woman for the de­part­ment, said SOSi was se­lected in a com­pet­i­tive process based on “tech­ni­cal eval­u­a­tion and the best value to the gov­ern­ment.”

SOSi, based in Re­ston, Va., said in a state­ment be­fore the NLRB filed its com­plaint that sub­con­tract­ing in­ter­preters “is not a new prac­tice” and that the views of “the small hand­ful of dis­grun­tled in­ter­preters who have filed protests in var­i­ous venues do not rep­re­sent ... the ma­jor­ity of qual­i­fied pro­fes­sional in­ter­preters.”

The case, which now goes to a hear­ing be­fore an ad­min­is­tra­tive law judge of the NLRB, will af­fect hun­dreds of in­ter­preters who work in im­mi­gra­tion courts na­tion­wide. Those courts are cur­rently sad­dled with a back­log of 585,000 cases, ac­cord­ing to the Trans­ac­tional Records Ac­cess Clear­ing­house at Syra­cuse Univer­sity, and they are set to be­come even busier as Pres­i­dent Trump pur­sues an agenda of mass de­por­ta­tion.

In­ter­preters play a cru­cial role in im­mi­gra­tion court cases: Only 11% of such cases were com­pleted in English in 2015, ac­cord­ing to a Jus­tice De­part­ment re­port.

Al­though the de­part­ment di­rectly em­ploys 65 in­ter­preters to staff im­mi­gra­tion courts, the vast ma­jor­ity — about 700 — are sub­con­tracted by SOSi. The con­trac­tors who com­plained to the NLRB said they should have been clas­si­fied as em­ploy­ees be­cause SOSi con­trolled the means and man­ner in which they worked — a key test in de­ter­min­ing whether a worker is an em­ployee.

“I had no free­dom at all,”

said Pa­tri­cia Rivadeneira, 61, for­merly a Span­ish in­ter­preter for SOSi. “There’s no way you can be an in­de­pen­dent con­trac­tor when you are or­dered to be in at a cer­tain time. You can­not leave when you’re ready to leave .... You were told which re­strooms to use. You were told how to dress. You were told you had to wear a badge. You were told you could not even say good morn­ing to any­body.”

The dis­tinc­tion be­tween em­ployee and con­trac­tor is “the di­vid­ing line be­tween ben­e­fits ap­ply­ing to you and obli­ga­tions be­ing met by your em­ployer, and es­sen­tially no le­gal pro­tec­tions or man­dated ben­e­fits,” said Seth Har­ris, a for­mer sec­re­tary of La­bor un­der Pres­i­dent Obama.

Em­ploy­ers are legally re­quired to pay work­ers’ com­pen­sa­tion and un­em­ploy­ment in­sur­ance pre­mi­ums for their em­ploy­ees, ad­here to min­i­mum wage and over­time laws, and al­low em­ploy­ees

to or­ga­nize and seek rem­edy from dis­crim­i­na­tion. In some cir­cum­stances they must pro­vide health in­sur­ance and fam­ily leave, and they of­ten of­fer paid time off, va­ca­tion and re­tire­ment ben­e­fits.

In gen­eral, there are no such re­quire­ments for con­trac­tors.

That a fed­eral con­trac­tor is ac­cused of skirt­ing the law is par­tic­u­larly out­ra­geous, Har­ris said. “You ex­pect com­pa­nies that are do­ing busi­ness with the fed­eral gov­ern­ment — and car­ry­ing out im­por­tant gov­ern­ment func­tions, get­ting paid with tax­payer money — would be held to a higher stan­dard,” he said.

SOSi was not the first com­pany com­mis­sioned by the Jus­tice De­part­ment to pro­vide in­ter­preters that treated them as con­trac­tors. But some say it com­mit­ted the worst of­fenses — and that’s why they took up a fight.

Rivadeneira, for ex­am­ple, had worked in im­mi­gra­tion court since 2002. She said she worked 4½ days a week, first at Mira Loma De­ten­tion Cen­ter in Lan­caster and later at Ade­lanto De­ten­tion Cen­ter, earn­ing $60 per hour, with a guar­an­teed min­i­mum of two hours’ pay for each as­sign­ment.

Though Rivadeneira re­lied on Medi-Cal for health in­sur­ance and never took va­ca­tion, she was able to sup­port her­self and her hus­band and rent a two-story house in Lan­caster. But when SOSi took over the con­tract and of­fered her $35 an hour, with no guar­an­teed min­i­mum, she balked.

“The wage was so low that it was not worth my time,” she said.

Rivadeneira and oth­ers be­gan or­ga­niz­ing and even­tu­ally ne­go­ti­ated a higher flat rate. They went to work for SOSi start­ing in De­cem­ber 2015. Af­ter that, Rivadeneira con­tin­ued to or­ga­nize, col­lect­ing in­ter­preters’ names, pass­ing out fliers about their rights and try­ing to form a union — ac­tiv­i­ties that cost her her job nine months later, ac­cord­ing to the com­plaint.

Rivadeneira is not the only one. The Times spoke to five other in­ter­preters who al­leged re­tal­i­a­tion, co­er­cion and un­fair dis­charge, and a lawyer for the in­ter­preters said that as many as 40 di­rectly par­tic­i­pated in the NLRB ac­tion.

“We treated our jobs as full-time jobs,” said Diana Ilar­raza of Los An­ge­les, who be­came an in­ter­preter in 1999 and said she was re­tal­i­ated against for com­plain­ing about not be­ing paid on time. “It was very hard and dis­heart­en­ing for us to see our ca­reers go away just like that — it was a loss of dig­nity.”

The com­plaint names nine em­ploy­ees, in­clud­ing Estrada and Rivadeneira, who were al­legedly ter­mi­nated be­cause of their or­ga­niz­ing ac­tiv­i­ties. It also al­leges that SOSi in­ter­ro­gated and threat­ened em­ploy­ees over th­ese ac­tiv­i­ties, con­ducted sur­veil­lance and or­dered them not to com­mu­ni­cate with one an­other or the me­dia about the com­pany or their work.

Not all of the in­ter­preters who work for SOSi are dis­sat­is­fied.

Ramesh “Ray” Shrestha, a Nepali in­ter­preter based out­side San Fran­cisco, trav­els weekly for SOSi, earn­ing a flat day rate of $500 each time. He said he likes the flex­i­bil­ity and pay, which give him time to spend with his wife and two kids.

Shrestha has one advantage Span­ish in­ter­preters do not: He speaks what is known as an “ex­otic” lan­guage and could not be eas­ily re­placed. “I don’t think there’s a huge pool of Nepali in­ter­preters,” he said. “I do have more ne­go­ti­at­ing power.”

The dis­pute has had an ef­fect in the courts. Ten im­mi­gra­tion at­tor­neys and one judge in­ter­viewed for this re­port said the qual­ity of in­ter­pre­ta­tion in im­mi­gra­tion court has suf­fered since SOSi took over the con­tract, cit­ing anec­do­tal ev­i­dence of no-shows and poor-qual­ity in­ter­pre­ta­tions as the ranks of vet­eran in­ter­preters have thinned.

He­len Sk­lar, an at­tor­ney based in Los An­ge­les, said she flew to Mi­ami in Jan­uary for a hear­ing that had been sched­uled months ear­lier, only to find out the case couldn’t go for­ward be­cause there was no Span­ish in­ter­preter. “No Span­ish. In Mi­ami,” she said in dis­be­lief.

Ac­cord­ing to Jus­tice De­part­ment data, in 2016 — the first full year for which SOSI pro­vided in­ter­preters na­tion­wide — 2,457 hear­ings were ad­journed due to in­ter­preter no-shows. That num­ber was up from 1,101 in 2015, when SOSi was be­ing phased in, and 512 in 2014, when a dif­fer­ent com­pany, Lion­bridge Tech­nolo­gies, held the con­tract.

Not hav­ing an in­ter­preter disrupts court cases and causes costly de­lays. It also wears on clients.

“Ev­ery time they come to court they lose a school day, they lose a day of work, they pay for park­ing. Their friends and fam­ily come. And then fi­nally they give up,” Sk­lar said. “They stop ask­ing their fam­ily and friends to come — and then they don’t have wit­nesses.”

At­tor­neys also cited ex­am­ples of in­ter­preters who sum­ma­rized rather than in­ter­preted com­plete sen­tences, or in­ter­preters who used the wrong word — such as “firearm” in­stead of “as­sault ri­fle,” “beaten” in­stead of “killed,” “in­con­ve­nient” in­stead of “not in my best in­ter­est.”

Those dis­tinc­tions mat­ter in im­mi­gra­tion court, where a sin­gle in­con­sis­tency in a claim can mean the dif­fer­ence be­tween stay­ing in the U.S. and get­ting de­ported.

“Nu­ance is ev­ery­thing,” said Dana Marks, a vet­eran judge in San Fran­cisco and pres­i­dent of the Na­tional Assn. of Im­mi­gra­tion Judges. “If things are said in dif­fer­ent ways at dif­fer­ent times, that can be an in­ter­preter’s fault, and yet, it makes the per­son look not cred­i­ble.”

Not only must in­ter­preters ren­der tes­ti­mony in a sec­ond lan­guage in real time, they must con­vey the class, ed­u­ca­tion level, emo­tion and author­ity of the speaker, re­quir­ing a wide range of vo­cab­u­lary.

Many of the in­ter­preters who had those skills have left im­mi­gra­tion court since SOSi took over the con­tract, Marks said. But now that the NLRB has said they are em­ploy­ees who have the right to or­ga­nize for bet­ter pay and work­ing con­di­tions, they hope to re­turn.

“I plan to go back to work as soon as pos­si­ble,” Estrada said.

‘I had no free­dom at all .... You were told which re­strooms to use. You were told how to dress.’ — PA­TRI­CIA RIVADENEIRA, for­merly a Span­ish in­ter­preter for SOSi

Christina House For The Times

PATRICA RIVADENEIRA, who had worked as a Span­ish in­ter­preter in im­mi­gra­tion court since 2002, lost her job af­ter she went to work for SOSi.

Christina House For The Times

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