Summary
SB 875 creates a permanent exemption for interpreters and translators from the provisions of AB 5 (Gonzalez, 2019), a bill which revokes their freedom and choice to work as freelancers. Specifically, this bill would provide interpreters and translators the freedom to independently contract their services, which will allow them to continue assisting non-English speaking Californians and members of the deaf and hard of hearing community, among others.
Existing Law
AB 5 (Gonzalez, 2019) essentially codifies and applies retroactively the 2018 California Supreme Court’s landmark decision in Dynamex Operations W. v. Superior Court, which prohibits independent contracting unless very restrictive conditions are met (i.e. the ABC Test), or unless the industry/profession is carved out of the new requirements or is able to meet the requirements of a very restrictive 12 factor business to business exemption.
Those who are not carved out or who cannot meet the business to business exemption requirements, but who still wish to be identified as an independent contractor must pass the strict ABC Test. For any hiring entity or independent contractor to comply with this test, they must demonstrate that the business arrangement/contract satisfies all 3 criteria of the test:
- the worker is free from control and direction in the performance of services; and
- the worker is performing work outside the usual course of the business of the hiring company; and
- the worker is customarily engaged in an independently established trade, occupation, or business.
Problem
For all intents and purposes AB 5’s extraordinarily restrictive ABC Test even with a business to business exemption (a 12 factor exemption that is virtually impossible to meet) has made it almost impossible for individuals who were not carved out of AB 5 to continue working as independent contractors.
This has been devastating to freelance interpreters and translators as they cannot meet the ABC test nor the business to business tests. Even if they could meet the business to business test, hiring entities are unwilling to hire them as independent contractors for fear of being sued.
As a result, interpreters and translators are either being forced out of the profession or into an employee/employment relationship where they have to give up their flexibility of creating their own schedules, choosing when they want to work, where they want to work, what they work on, and how much they earn.
This cannot stand, as these professionals provide an important and time sensitive service to many vulnerable communities in settings such as medical facilities, schools, courtrooms, or on live television.
The Solution
SB 875 creates a permanent exemption for interpreters and translators from the provisions of AB 5. The bill will allow a vital sector of hard working Californians to continue working as independent contractors. As such, interpreters and translators will no longer have to worry about the evaporation of independent contracting opportunities nor the loss of freedom and choice that comes with the government forcing them to become employees.