Court interpreters case could produce major labor law change

WASHINGTON—A case involving 800 U.S. immigration court interpreters in Los Angeles and San Francisco, hired by a private subcontractor to provide language services to defendants in federal hearings, could produce a major labor law change — if it survives a judicial and political gauntlet.

That’s because the interpreters, who want to unionize with the News Guild, are currently classified as “independent contractors” who don’t have any worker rights, including the right to unionize.  They want to change that, and not just for themselves alone.

While other groups of “independent contractors” — such as port truckers in Los Angeles-Long Beach — have been declared “employees,” with full worker rights, after the fact, these interpreters are challenging employers’ whole “independent contractor” dodge as a violation of labor law on its face.

If the interpreters ultimately win before the National Labor Relations Board (NLRB) and in federal court, they would automatically open the way for millions of workers nationwide, all now misclassified as “independent contractors,” to organize and bargain.

Becoming “employees” under labor law also means their employers, not them, would shoulder the companies’ share of payments for Social Security and Medicare payroll taxes, unemployment insurance benefits and workers’ comp.

But that’s a big “if.”

In a recent interview with Press Associates Union News Service, Tim Schick, the Guild’s organizing director, outlined the case, which San Francisco attorney Sheila Sexton is handling. She’s more versed in the details, he says, but repeated phone calls to interview her were not returned. The ALJ’s hearing on the case was scheduled to start August 21.

The immigration courts, an arm of the Justice Department, decided not to hire the interpreters themselves, Schick said, but to subcontract the work to a private enterprise, SOSI. All was calm until the interpreters learned they were getting paid less than other, unionized, interpreters in California.

“They started agitating for compensation, because SOSI reduced their rates,” Schick said. It also refused to even hire some of the most-active pro-unionists. That’s when the 800 interpreters contacted TNG, which has a local of other court interpreters, mostly in California.

SOSI retaliated by terminating some of the interpreters’ contracts. When they continued to agitate, the firm told them their contracts specified they’re “independent contractors,” unprotected by labor law, Schick said.

The contractors filed labor law-breaking — formally called unfair labor practices — charges, including challenging the whole “independent contractor” classification.

Before the NLRB’s administrative law judge in San Francisco decided to take the case, the judge consulted upwards, to the agency’s Division of Advice, which tracks labor law precedents and rulings and analyzes them for its ALJs.

“The division said there’s evidence” the interpreters “have been misclassified. The NLRB position is that misclassification” as an independent contractor in and of itself “is an unfair labor practice,” Schick says.

That prevents the interpreters from being protected by labor law when they act as a group to protect themselves and from getting back pay and other compensation when their boss breaks the law. The National Labor Relations Act protects workers acting in concert and gets them net back pay, but only if they’re employees, Schick points out.

“This is a threshold issue for all sorts of contingent workers — the L.A. port drivers, adjunct professors, Uber drivers, you name it,” Schick says. “It opens up the basic question of if they have labor law protection.”

“It’s a rather unique situation,” Craig Becker, the AFL-CIO’s co-general counsel and a former National Labor Relations Board member, told Press Associates Union News Service.

“To inform someone that they have no rights at all” under federal labor law runs counter to a specific section of the statute, he explains.

“That’s a very solid theory” that NLRB General Counsel Richard Griffin “is advancing,” Becker said.

“Misclassification” as independent contractors “frustrates the ability” of workers “to engage in protected concerted activity under labor law,” adds Celine McNicholas, a labor law attorney with the pro-worker Economic Policy Institute.  “That includes the right to organize.”

“Given the scope of misclassification, this case has added importance for workers.”

But while the NLRB’s Division of Advice agrees existence of independent contractors may be a labor law violation on its face, federal courts are another matter. So is the board.

In its latest case involving corporate classification, or misclassification, of workers as “independent contractors,” the U.S. Circuit Court of Appeals for D.C., which handles most labor law cases, came down squarely on the side of the company, FedEx.

Judge Patricia Millett, writing for the court’s 3-judge panel in March, ruled FedEx properly called its drivers in its Wilmington, Mass., terminal “independent contractors,” thus barring them from unionizing with the Teamsters.

And it rejected the NLRB’s argument that they had a right to do so. It said the board wrongfully changed its test of when a worker is an “employee” or an “independent contractor.”

But Becker says that FedEx ruling isn’t relevant to the contest in San Francisco, because, like other court cases involving “independent contractors,” it involves one group of workers challenging their misclassification after the fact. The interpreters are challenging the concept of independent contractors in and of itself as a labor law violation.

What may be more relevant, though, is the changing composition of the board, Becker notes. Republican President Donald Trump nominated two Republican attorneys to vacant seats on the 5-member panel. One, a virulently union-hostile former top congressional aide, was confirmed.

The other, a labor lawyer from Los Angeles who told senators he didn’t believe independent contractors were much of a problem, hasn’t been OKd, yet. As a result, the board is tied politically 2-2, at least for now.  McNicholas said a technicality delays Senate approval.

“In the board’s view, entrepreneurial opportunity should merely be one part of a broader factor that… asks whether [a] putative independent contractor is, in fact, rendering services as part of an independent business” That should not get any special weight in deciding whether a worker is an independent contractor or not, Millett said in ruling for FedEx in March.

Quoting the past U.S. Supreme Court ruling that laid down 11 standards for judging whether a worker is an employee, covered by labor law, or an independent contractor, who isn’t, Millett and her colleagues said the board must decide those disputes case by case and company by company.

In the D.C. Circuit ruling, Millett noted one key factor if a worker is an independent contractor or not is how much control the employer has over the worker and the workplace. In the FedEx cases, the board said FedEx had “pervasive control” over its drivers, day to day, and that their driving was a “core” of the firm’s business. The 11 standards spell out what that “pervasive control” looks like. Millett and her colleagues still sided with FedEx.

“This case involves the exact same parties — the board and FedEx Home Delivery — as FedEx I. The facts are acknowledged to be virtually identical, and the board makes no effort to distinguish the two cases factually. The purely legal question to be decided also is exactly the same: Whether the same materially indistinguishable facts that added up to independent-contractor status in FedEx I add up to independent-contractor status in FedEx round two.

“It is as clear as clear can be that the same issue presented in a later case in the same court should lead to the same result. Doubly so when the parties are the same,” Millett wrote.

Source: PAI