AB2257: Exactly What You Need To Know [tHE pROLANGUAGE POST|
AB5 and AB2257 are laws that delineate how ASL Interpreters in California are categorized
RECAP: AB5 makes it so that companies cannot have "independent contractors" in name alone while treating people as employees.
Did you know the implications for ASL Interpreters as Independent Contractors under AB5 and AB2257?
What’s all that about?! Let's break it down. California's labor laws can be difficult to understand.
Assembly Bill 5 (AB5) and its amendment, Assembly Bill 2257 (AB2257), have significantly influenced the classification of people working in California, including ASL interpreters. To understand the implications for ASL interpreters working as independent contractors, let's delve into these legislative pieces.
AB5, passed in 2019, aimed to address the misclassification of workers by introducing a more clear and stringent "ABC test."
Imagine you are a company that has employees, such as in a textile mill, where many people are weaving. Then an advisor says to save more money on taxes, FIRE all the employees then rehire them as independent contractors. Of course, to line your pockets, says the advisor, they would only be ICs (Independent Contractors) in name alone because they don’t know their rights. The advisor whispers A) you still have control over key pieces of the employment, B)they would not really be a business, and C) they would still be dependent on you for all sources of income since they don’t have any skills beyond the ones you provide them through training. Something seems wrong, right?
ABC Test
This ABC Test establishes three criteria that must be satisfied for a worker to be classified as an independent contractor:
A. The worker must be free from the control and direction of the hiring entity in connection with the performance of the work.
B. The work performed must be outside the usual course of the hiring entity’s business.
C. The worker must be customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
For ASL interpreters, satisfying the "B" criterion—performing work outside the usual course of the hiring entity’s business—posed a significant legal challenge for how agencies interact with ASL Interpreters. Interpreting services are integral to the operations of entities that require such services, making it difficult for interpreters to maintain their independent contractor status under AB5. So how to fix this conundrum.
AB2257: Wait… there is more?
Very understandably recognizing the complexities and challenges posed by AB5, the California legislature enacted AB2257 in 2020 (after PHENOMENAL work by SCRID, shout out to SCRID!) to introduce exemptions and provide clarity for various professional services, including and especially for ASL interpreters.
Under AB2257, ASL interpreters can qualify for an exemption from the ABC test if they meet specific conditions, including:
1) Having a written contract for their services.
2) Possessing evidence of a business entity: e.g. a city business license, corporation, LLC, county DBA, etc.
3) Demonstrating the freedom to set their own hours and work locations.
These conditions align with the operational independence required to maintain their status as independent contractors.
Small note:
Business-to-Business Exemption
This exemption allows interpreting agencies to contract with individual interpreters, provided certain criteria are met. These criteria include:
1) The interpreter maintains a location of business independent from that of the interpreting agency. That is, ASL interpreters have their own business location, such as a home office used for business, that is not the same location as the agency uses for business.
2) The interpreter has the ability to contract with other clients.
3) The relationship is governed by a written contract that specifies the interpreter’s status as an independent contractor.
Last Thoughts
To align with AB2257 and safeguard their independent contractor status, ASL interpreters and interpreting agencies must ensure compliance with the specified conditions. Here’s how:
1. Written Contracts: Every engagement must be formalized with a written agreement that outlines the terms of service, emphasizing the independent nature of the relationship.
2. Bona fide Business: Interpreters should maintain appropriate business organizing documents such as a business license with your city, DBA’s (Doing Business As____) registered with the county, LLC (Limited Liability Company) filed with the California Secretary of State, or setting up a corporation. These actions demonstrate and underscore status as an independent entity. Not included but recommended is having personal and/or professional liability insurance.
3. Operational Independence Interpreters must demonstrate autonomy in managing their schedules, accepting assignments, and providing services across multiple clients or agencies.