Interpreters and Translators: Worker Misclassification

OSTI attendees at January 27 event

On February 27, 2016, Trevor Leahy, from the Oregon Employment Department, gave a presentation titled “Worker Misclassification” to 45 attendees during a free event sponsored by OSTI in Beaverton.
2016 Employee Misclassification – OSTI

Those present were surprised to hear from Mr. Leahy that Oregon Statute ORS 657.048 states: “Employment does not include services performed by language translators and interpreters that are provided for others through an agent or broker.”

The presentation kept the audience engaged and asking many questions. We want to thank Mr. Leahy and the volunteers who helped make this event a success: Svetlana Ruth, Mika Jarmusz, Monica Goebel, and our photographer Jaime Placeres. After the presentation, attendees said it was a great presentation. Non-OSTI members expressed how grateful they were to have been given the opportunity to attend the event.

Additional research by OSTI, based on further conversations with Mr. Leahy and on the following links to the Oregon laws related to this topic, may help interpreters and translators understand their employment status within the state more clearly. We also include the handouts Mr. Leahy brought to the session.

Employee or Independent Contractor?
State Agency Criteria for Independent Contractors
Independent Contractor Statute
Recap Slide

The IRS (Federal Government) has published this document about the difference between contractors and employees.

In Oregon, according to ORS 656.017, all employers are required to pay workers compensation.According to ORS 656.029, employers are also required to pay workers compensation for contractors, except for those covered by an exemption.

Exempt workers are listed in ORS 656.027:
Exemption number 27 is:
All workers are subject to this chapter except those nonsubject workers described in the following subsections:
(27) A person performing language translator or interpreter services that are provided for others through an agent or broker.

Based on this clause, interpreters and translators in Oregon are determined to not be independent contractors when working with an agent or broker.

This is clarified in ORS 657.048, Employment – language translators or interpreters excluded, exceptions. (see full text below, as retrieved from the website on March 8, 2016)

Therefore, when interpreters and translators are working through an agent or a broker:
They are not employees (do not have a right to unemployment insurance) per ORS 656.048 (27)
They are not contractors (do not have a right to workers compensation) per ORS 656.027
See the full list of exemptions as of March 8, 2016, below.
When we work with other organizations, with other employers who are not agents or brokers for interpreting or translation, how do we determine our independent contractor status?

The following text is copied from the Oregon Revised Statutes on the definition of Independent Contractors in Oregon.
Text in italics is OSTI commentary. It has been discussed and reviewed by Mr. Leahy.

ORS 670.600,as retrieved from http://www.oregonlaws.org/ors/670.600 on March 8, 2016 Comments
Independent contractor defined
(2) As used in ORS chapters 316, 656, 657, 671 and 701, independent contractor means a person who provides services for remuneration and who, in the provision of the services:
(a) Is free from direction and control over the means and manner of providing the services, subject only to the right of the person for whom the services are provided to specify the desired results;
Examples of direction and control:
• saying exactly where and at what time the interpreting service must be provided.
• giving the interpreter a phone for interpreting
• requiring the use of a particular software for translation

(b) Except as provided in subsection (4) of this section, is customarily engaged in an independently established business;
(c) Is licensed under ORS chapter 671 or 701 if the person provides services for which a license is required under ORS chapter 671 or 701; and
(d) Is responsible for obtaining other licenses or certificates necessary to provide the services.
Interpreters and translators are typically responsible for obtaining their own certifications.
(3) For purposes of subsection (2)(b) of this section, a person is considered to be customarily engaged in an independently established business if any three of the following requirements are met:
(a) The person maintains a business location:
Examples of things that do not qualify as a business location:
• A laptop in a corner of the living room

(A) That is separate from the business or work location of the person for whom the services are provided; or
(B) That is in a portion of the persons residence and that portion is used primarily for the business.
(b) The person bears the risk of loss related to the business or the provision of services as shown by factors such as:
(A) The person enters into fixed-price contracts;
(B) The person is required to correct defective work;
Making corrections to our translation work when the client requires it qualifies, because we are taking time off from other paying work to make things right.
In the case of interpreting, the risk we take is simply that we may never see that client again. Every interpreting appointment could be your last interpreting appointment with that client.

(C) The person warrants the services provided; or
(D) The person negotiates indemnification agreements or purchases liability insurance, performance bonds or errors and omissions insurance.
(c) The person provides contracted services for two or more different persons within a 12-month period, or the person routinely engages in business advertising, solicitation or other marketing efforts reasonably calculated to obtain new contracts to provide similar services.
Having business cards, engaging in some kind of advertising of our services, etc., would qualify.
Our work with language companies doesn’t count because working as a translator or interpreter for others through an agent or broker does not constitute employment. See http://www.oregonlaws.org/ors/656.027, exception 27.

Working with direct clients does count. So does working for nonprofits, the state, and an Indian tribe. See http://www.oregonlaws.org/ors/657.048.
(d) The person makes a significant investment in the business, through means such as:
(A) Purchasing tools or equipment necessary to provide the services;
We provide our own tools to provide the services.
(B) Paying for the premises or facilities where the services are provided; or
(C) Paying for licenses, certificates or specialized training required to provide the services.
We take care of our own training and licensing at our own cost and on our own time, taking time off from paying clients.
(e) The person has the authority to hire other persons to provide or to assist in providing the services and has the authority to fire those persons.
Language companies typically do not want us to subcontract our work to other people when we are not able to fulfill our contract.

Text of ORS 657.048, as retrieved from http://www.oregonlaws.org/ors/657.048 on March 8, 2016
Employment
• language translators or interpreters excluded
• exceptions
(1) Employment does not include services performed by language translators or interpreters that are provided for others through an agent or broker.
(2) The provisions of this section do not apply to services performed for:
(a) A nonprofit employing unit;
(b) This state;
(c) A political subdivision of this state; or
(d) An Indian tribe. [1997 c.294 §2; 2001 c.572 §5; 2005 c.218 §11]

Other exemptions have been defined for:
• golf course caddies (ORS 656.043)
• partners and corporate officers and directors who are family member and certain sole corporate officers and directors (ORS 656.044)
• agricultural labor for less than $20,000 per calendar year, among many other exceptions (ORS 657.045)
• operation of taxicab or passenger vehicle for non-emergency medical transportation (ORS 657.046)
• transportation of logs, poles and piling and lessor of for-hire carriers (ORS 657.047)
• language translators or interpreters (ORS 657.048)
• domestic service, child care service and certain service not in course of employers trade excluded (ORS 657.050)
• certain service on fishing boat (ORS 657.053)
• maritime service (ORS 657.056)
• family service and foster care (ORS 657.060)
• governmental service (ORS 657.065)
• community work and training programs, work study, work experience and work incentive programs (ORS 657.067)
• certain nonprofit services (ORS 657.072)
• service under Railroad Unemployment Insurance Act (ORS 657.075)
• stringer, correspondent and photographer services for media (ORS 657.078)
• news delivery service (ORS 657.080)
• service by certain agents, brokers, producers and salespersons (ORS 657.085)
• service by individuals soliciting contracts for home improvements and consumer goods sales (ORS 657.087)
• certain sports officiating services (ORS 657.088)
• petroleum products distributors (ORS 657.090)
• food product demonstrators (ORS 657.901)
• nonprofit organization employees and contestants (ORS 657.092)
• certain services provided in exchange for ski passes (ORS 657.093)
• down-river boating activities (ORS 657.094)