Getting independence right: as simple as ABC!

There's been a bit of a buzz lately in professional language service circles regarding a recent ruling by California's Supreme Court, which establishes a new, simplified standard to determine independent contractor status. For example, the corporate interest blog Slator reported on the panic among large language brokerage firms sometimes known for predatory and abusive practices with the companies and individuals whom they contact to provide services, while independent interpreter Tony Rosado offered an interesting perspective on how the ruling can have a positive impact on independent professionals in his field and, I dare say, independent translators as well.

The Court's decision established the "ABC" criteria as the new standard for distinguishing employees from independent contractors:

A) The individual must be free from the control and direction by the hiring entity with regard to the performance of the work, under the terms of the contract for the performance of this work and in fact. 

B) The individual must perform work which is outside the usual course of the hiring entity’s business. 

C) The individual is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

Failure to meet all three criteria will lead to a finding that the individual is an employee and is therefore not an independent contractor.

Now you might say – correctly – that California is a long way from New York, London, Paris, Berlin and Rome, what has that got to do contractor conditions there? A lot.

Over the past three and a half decades, since the rape and pillage of unions and workers rights in general began by the rapacious disciples of Ronald Reagan, a system of work and service practices has evolved which I think could fairly be called social strip-mining. (After I wrote this term, I wondered if others have used it as well, and found, unsurprisingly, that this obvious analogy has occurred to quite a number of people.) Very few of the present practices by large corporate providers of language services (interpreting, translation, writing and editing) are in fact sustainable.

Like strip mining companies tearing down a mountain and utterly destroying its ecology of flora and fauna, polluting waters underground and on the surface nearby as well as other ecosystems, companies like Lionbridge, thebigword, TransPerfect, RWS/Moravia and others and their downstream companies in the service sewer put the squeeze on individuals at the end of their corporate digestive system to extract maximum resources for minimum benefit in a manner which often cannot sustain the living of the writers, editors, translator, interpreters and other service workers at the butt end of things. These individuals may cling for some time to their desperate situation as an alternative to prostitution or delivering pizzas, but there is very little incentive and few resources provided for them to develop as professionals and acquire greater skills to deliver greater value with time.

Some, like abused children, learn the lesson of what the abusers can get away with and continue the cycle on small and large scales, outsourcing or even founding new companies with similar practices.

In truth, nobody is well-served by these practices on the end customer side – the individuals, companies and government bodies who contract with the intermediaries for services provided by individual interpreters, translators, editors, etc. – nor on the end-provider side – those very interpreters, translators, editors, etc. And in the middle? "Growth" seems to derive largely from acquisition and from refinement of their marketing deceptions (many in the bulk market bog of language services have SEO-tuned web pages designed to capture searches for independent individual service providers), not so much from actual organic growth of internal service and quality offered. Price dumping practices are also common; many small service companies are unable to compete with "loss leader" prices to end customers which are lower than those they pay to real independent service providers of good professional business standing.

None of these abusive practices are new; they have been known in many forms throughout the modern history of labor starting more or less in the early 19th century. These practices ultimately led to the rise of unions and bodies of protective legislation in the past, so it is not surprising that some have called for "unionization" of international service providers. ("Workers of the world, unite!", anyone?) But these well-meaning calls for unions of interpreters and translators are not really practical in most situations. So many say there is nothing to be done.

Wrong. The California Supreme Court decision points the way toward ending the worst of corporate abuses of individuals providing service by creating a situation in which the true costs of these services are emphasized in the relationship with the service provider. There is nothing standing in the way of companies like Lionbridge or much smaller companies from increasing salaried staff to write, translate, interpret, etc. under local statutory conditions for ordinary employment. To the extent they find this impractical, these companies can contract with other companies or with individuals who meet the ABC criteria.

Such a requirement would also give a fair break to those companies who do in fact invest in the socioeconomic maintenance and professional development of their employees providing service to end customers. Under current practices, these good companies are unfairly disadvantaged by laws and regulatory practices which now permit these service strip-miners to operate as they do. Local and national governments would also benefit from and increase of benefit payments from registered employees or from taxes assessed on work transactions which fail the ABC test.

In the environment of expanding globalized trade and sophisticated corporate shell games to avoid tax liabilities, enforcement of necessary and proper good social practice at the "source" – the intermediate provider level or at the end customer level where there is a direct relationship between a company or government body with a presumed independent service provider – is perhaps the most practical way to accomplish some of the reforms needed on a global scale.