Note From Uncle Dale: Why It’s Important. 

Hello everyone! Uncle Dale here.

So today I was reading some comments on a Facebook group for interpreters (the group is for discussions of best practices and resources). One of the interpreters asked a question and many many interpreters answered with statements like “the ADA requires that doctors provide interpreters.” Or “the ADA says they must provide qualified interpreters…”

Here is the problem.  It doesn’t.  No where in either Section 504 or the ADA is there ever a situation where either law says, “if… then you must provide an interpreter.”  No where.

What the laws say is doctors or lawyers or accountants… must provide “effective communication.”  There are certain situations where effective communication could not happen without an interpreter, but that is fact based not a matter of law…

Unless the facts are so clear that it can be decided as a matter of law.  But to make sure you have the facts organized in such a way that an interpreter would be required as a matter of law, you have to understand the law. The whole law.  Not just the parts you want to use to demand an interpreter, but the ways you have to document things and ask for things and which law you want to use in a specific situation with these facts and at that business or agency…

So. My “How to request a live interpreter at the ER” got thousands of views.  “Where do 504s come from” did not. It was 12 minutes long.  It seemed boring.

It’s important.  You should watch it.

Grin.

Note from Uncle Dale: This is What the Website is FOR!

I know three posts in one day is getting a little excessive. But I looked back and the first day I loaded like 30 Rules. For a while I was doing three a day.  That got a little “overloady” for everyone I think. 

Anyway, a friend just sent me one of those “urgent” emails; the ones with the red exclamation point. The subject line said in all caps “HAVE YOU SEEN THIS?

https://www.usor.utah.gov/dhh/terps

Did you give them permission to do this?”

The answer to both questions is no.  

But the real answer is “YAY!”  That is what the blog is here for.  This link meets all the criteria I ask. It’s accessible and it cites the source.  

I want this info out there.  So again, “YAY!”

If you want to link for your school or agency please do.  Just make sure you cite the source and are not charging for this information.

I would love a heads up if you link. 

Thanks! 

Edit: BTW… thanks for looking out for me!  I do appreciate it!

Note From Uncle Dale: ASLTA

Hello Juan and all (for some weird reason this auto-corrected from “one and all.” I was going to fix it, but in today’s political climate I figured it was time Juan got a special hello!)

The national conference for the American Sign Language Teacher’s Association (ASLTA) has been going on this week right here in my own backyard.  Unfortunately my pesky lawyer job has kept me away from most of the festivities (a mere block away yesterday) so I have had only a few minutes to pop in and reconnect with some dear long lost friends (shout out Marla!).  However I would not miss the closing show!

I will repost this with pictures later. Until then dear readers, if any of you are here at Ben Jarashow’s performance please find me to say hello.  I am dressed so you will know who I am.

UD

There are few people on this earth that can tell a story better than Ben Jarashow! He has us all eating out of his hand (while he feeds us Jellyfish!)

I didn’t even recognize Jonathan Webb!  Warn a guy before you cut your hair!  We had a great talk and I totally spaced getting a pic with him.  RID!  I’ll get one there!

Then I actually got a picture with Missy Keast and totally spaced asking her if I could post it… so I will send her an email and ask.

I caught up with Jeff Pollock (touring around with Liz in the party van).  The picture just kinda came out blurry… or maybe that is just how we look. It was that kinda partying night! 

It was great to see Jim Lipsky! 

And of course it’s always a pleasure to spend a minute with Anthony Natale who is without a doubt the nicest person in the world!

A big thanks to everyone who came up to say hi. The “Damn You Dale Boam” shirt stands out so I’m hard to miss.  ASLTA goes on through tomorrow.  So you still have time!  Grin.

Note from Uncle Dale: A Harsh Examination of the Interpreter  

So, you ask, Uncle Dale who are you… I mean in relation to the Deaf Community.

Good question.  I can only answer for me and certainly not for the Deaf Community.

As I see me, I am a facilitator of communication. I can be an ally, when it is appropriate (sometimes it’s not-sometimes what I see as ally behavior is actually Audism. All of my passion and experience and fluency does not save me from the things my hearing privilege hides from me).

Sometimes… sometimes I am a necessary evil (mental health treatment should not be interpreted–it should only happen directly in the language of the person needing therapy-oh and education. But this is not the world in which we live).

I am not the savior of the Deaf Community. I’m the hired help.

I always remind myself that the Deaf Community was resisting Audism before I got here and will still be fighting long after I’m gone.

I am not needed. What is needed is the work I do.  The work I do is needed and always appreciated, but sometimes the appreciation is… grudging; and that is fine. The Deaf Community does not need to love me AND THAT IS FINE.  I don’t have any say about how the Deaf Community should or should not feel about anything.  I can only make observations on what I see.

There is a level of ambivalence that always seems to exist between me and the community I love and serve. I exist in world where my work is greeted with appreciation and frustration at the same time.

Why? Well. I think of it this way. Imagine that, in order to breathe, you must employ the services of a person who touches the end of your nose-a certified nose toucher.

Now, it may not be that you can’t breathe, but in order to breathe effectively, and specifically at times of stress or when breathing effectively is vital, the services of a professional, certified “nose toucher” is needed (can’t do it for yourself, oh and you have horrible memories of the education system trying to teach you to touch your nose with your elbow, and everyone seems to have a suggestion of installing dubious microchips in your nose, but I digress).

So how would you feel toward the “nose toucher?” You would of course appreciate the “nose toucher” each and every time you took a clear and effective breath. But, you would also resent the fact that you had to depend on this other person for something so basic as breathing, that the world as it is forces this reality.

You would surely be angry each time someone talked to the “nose toucher” instead of you, as if you were unable to think instead of breathe.

Out of necessity you spend time with your “nose toucher,” and so you may develop “a relationship,”  sometimes beyond the realm of “nose touching,” maybe even a friendship.  But, that can lead to problems of its own. A blurry line between friend and professional can be dangerous.

Of course sometimes you will be assigned a “nose toucher” that you just do not like.  That’s a whole new level of frustration.

In the end no matter how much you appreciate the work of the professional, certified, “nose toucher” and even despite perhaps liking some of the “nose touchers,” they are people you MUST be with, not people you choose to be with. Every time they do their job you are grateful for it and also reminded of the fact that you are dependent on them. Appreciation and frustration. Sometimes you just want to go into the bathroom all alone and just choke. Sometimes you would rather just choke.

This is the way I imagine it, but I may be way off. Even if I am exactly accurate in my observations, people who are Deaf have every right to this feeling of ambivalence and it does not diminish the importance of what I do or my love of doing it. For me, recognizing it just keeps my head in the right place so I can do it my job effectively.

Who am I in relation to the Deaf Community? I am as helpful as I can be, as often as I can be. Nothing more nothing less.

Note from Uncle Dale: We Never Certify Alone or We Win Together but We Fail Alone.

I have a few simple rules in life.  Well, besides the 267 Rules you will find here… yeah. Um.  

I’m going to start this one again. 

Hi everyone! I have more than a few rules in this life. One of them is called the Twelve-Year-Old Boy Rule.  

The Twelve-Year-Old Boy Rule states that when you produce or create something, like… say, a warning sign at an amusement park…

(My 12-year-old, “wow, they really like roller-coasters!”)

(My 12-year-old, “another one? So if the ride lasts more than four hours do we call a doctor?)

(My 12-year-old, “I’m concerned more for the people that had the problem requiring a sign than the for the sign itself.”)

(My 12-year-old, “if only you read that sign earlier you would not have to hear me joke about being the result of you not reading that sign earlier.”)

Or a menu item

(My 12-year-old just laughed and pointed). 

Or directions on installing a car seat in an SUV

(My 12-year-old, “it’s ether instructions on child safety seats or a PSA on why it’s important to wear condoms.”)

or perhaps a bouncey-house for children…


(My 12-year-old said nothing, he just pointed, took my phone, filmed this, handed me my phone, sighed, and walked away.)

Whatever you create, the Rule is you have run it past a twelve-year-old boy to check that it is not wildly suggestive of some dirty double entendre or other strange mixed message.  Spotting the double meaning is the legitimate superpower of every twelve-year-old boy! In other words that you are actually producing the message you wish to produce.  

The reason errors like these happen is in our minds we can clearly see what we want our creation to be. We see what we want so obviously in our heads that we miss what any 12-year-old will see immediately with his eyes.  Thus my Rule, run it past a twelve-year-old boy, because if he snickers, y’all need to take another, highly critical, look at your product before it “goes to market.”

I teach my interpreting students to apply this Rule to their academic and practical interpreting goals, because preparing to take the Cerification Test requires two sets of eyes and honesty in two hearts.  Not cruelty.  Honesty.  

(It would not be an Uncle Dale Note without a digressive parenthetical.  I always tell my students that my main goal in teaching any skill set is to make myself unnecessary. I don’t have the time in a semester to actually teach them how to produce spoken equivency from sign or interpret a text consecutively or simultaneously.  I don’t have time to scratch the surface of legal interpreting or medical or educational interpreting, at least not with any real nuance. So I spend my time teaching them the structure and how to self-evaluate their proficiency in order to grow and develop after the semester is over.  I teach them how to not need me to continue to learn. But just because they don’t need me doesn’t mean they don’t need anyone.)

There are two problems with trying to critique yourself:

1. You are too hard on yourself. I often give feed back to students telling them “the problem is you realized you were were doing it right.”

“What does that mean?”

“It means the problem started when you realized you felt like you were doing it right and at the same time your self-doubt screamed “that can’t be right! Because you are doing it!”

This common trait of being the pissy with ourselves stunts development.  We become afraid for others to see our work because our least objective and most savage critic, ourselves, has already spoken.  

2. You are not critical enough of your own work.  I call it “bulletproof.” An interpreter who, at sometime in the past, wwas told by a member of the Deaf Community that he “does great work” gives himself a pass on all feedback and analysis for the rest of his natural life.  They hold that complement like it’s holy relic to fend off any critiques of his work like it’s a cross warding off vampires. 

People who offer feedback are “picking on them” because so-and-so told him his work was fine. Clients who request a different interpreter “hate hearing people.”  And certification testing is “bias” or “invalid” (and he never has to try it because so-and-so told him six years ago that he signed better than a certified interpreter).

The cure for both the issues is the same.  An interpreter must always be willing to look at their work objectively and more important must allow others to look at their work and accept feedback at face value.  We must do it during our first year of practice our fifth year of practice our twentieth year and, well, forever.  

It’s hard.  It’s hard to look your work and not see an error as a failure. But we must.  I have had to speak to students on occasion about their self-critical aversion to risk. I have students who always have “equipment problems” or can never seem to find a partner for team evaluation exercises.  I had one that gave me excuses so often that I told her she had to take a technology class or leave the program. After the initial shock I told her that, from what I had seen she had some talent, but I could not help her fix issues she would not show me. 

She started to talk about anxiety and I stopped her and said that if she had disabling anxiety that must be accommodated she needed go get evaluated through accessibility services. If she was just anxious she needed to be willing to subject herself to risk if she wanted to get any reward.

And so must we all.  We must be willing to risk to get anything worth having.  

So back the Rule. If you want to get better you must risk the evaluation of others. Find someone you trust and who produces work you respect and remember that there is a vast difference between judging you and evaluating your work.

When it comes right down to it, that is what certification is.  It’s being willing to subject your work to the analysis of your peers and allow them to look at it like a collection of twelve-year-old boys.

Note from Uncle Dale: So, Today You Test!

Hi everyone!  Uncle Dale back again.

Ready? Here we go! What do these three questions have in common?

1. Vehicles from which country use the international registration letters WG?

2. Freddie Mercury died in which year?

3. To within ten thousand square miles, what is the area of Louisiana?

The common link? It is highly unlikely that you will need to know the answer to any of them in order to successfully pass any interpreter certification screening.

There will be no surprise algebra section.  There will be no surprise sections at all.

What you will need to pass is the skills you have practiced everyday from the day you started to learn ASL until the day of your test.

Think.  Suppose the presenter’s topic is “how a bill becomes a law,” that is a process, just like, “how to make fajitas,” is a process or “directions to the lake,” is a process or “how to get to my office from the San Diego airport,” or “how payroll works.” (I hope at least one of those is familiar? Grin)

All of these are the same thing-a process- with the content within the steps replaced by, perhaps, the content, “how a bill becomes a law” or, “what the risks and benefits of your surgery are,” or “Deaf Culture in the 1800’s.” These are each just the same things you have practiced over and over and over… the same process, with different words, different content. Just do what you do everyday.

The same is true when you are voicing. Do what you trained to do. Don’t chase the text. Let it come to you. It will come if you let it. It won’t get away, if, you look for meaning instead of substituting spoken words for signs. When in doubt slow down and think.  Listen, process, produce.  Just like you practiced.

Some screenings and state QAs even give you the topics ahead of time.  Google is your friend.  With google at your finger tips you not only have the process but might even have the terminology and content to stick in it (feed your ELK).

Missing a word or a sign is not an instant fail. If you feel you messed up, fix what you can and move on.  Don’t live in that moment. Don’t pitch a tent there. Don’t build a little cabin there. Don’t design a small research camp to examine the mistake.  Just move on.

Have you ever seen The French film La Femme Nikita? Not the TV series or that terrible terrible travesty of an American version Bridget Fonda, the French version with Anne Parillaud. (Sadly the scene I found is dubbed… that doesn’t change my metaphor at all, dubbed just sucks in principle.

Nikita was very naughty and was “executed.” However, she wakes up in a weird kind of finishing school.  They teach her how to dress and walk and use computers and fight and shoot. She is there for three years. On her 21st birthday her instructor takes her out of the school (for the first time) for dinner.  He gives her a birthday present, a big gun, tells her to shoot the diplomat behind her and escape though the window in the last stall in the men’s room. This is how it goes:

If it is not obvious, it’s a test. It’s what she was trained to do.  It does not go as she planned and she freaks out, twice.  Then she pulls it together and does what she trained to do.  The point is not that she freaked out.  The point is she does what she trained to do.

It’s just the NIC or the BEI or the state test or… whatever test is on the other side of that door.

It does not matter if something goes wrong if you do what you trained to do.  You can fall down. You can fall down a few times-so long as you always get back up one more time than you fall.

Do what you trained to do. You’ll be fine.

Before I send you off to test remember, oh remember, these three things. 1) this is a review of the the work you produce during a fifteen to twenty minute moment of your life, not a judgment on your worth as a person; 2) no matter what happens in that room no one will go to the morgue and no one will go to jail; and, 3) you enjoy interpreting. This is interpreting.   It’s ok to enjoy it. Feel the stress sure, but it’s ok to enjoy the process.

Good vibes to all of you!

(Psst.  I know I didn’t answer the 3 questions at the top.  That’s the point. If it bothers you, Google is your friend.)

Note from Uncle Dale: Non-Compete Clauses are Cute… Until They Are NOT

Uncle Dale back again!

Questions come in groups. This week everyone wants to about non-compete clauses/agreements. It even showed up on FB interpreters group.

Spring is here! “Big VRS” must be on a hiring binge, because that is when I get these questions. DO NOT TAKE ANY THING I SAY AS LEGAL ADVICE. Go talk to an attorney where you live. This is a blog called Uncle Dale’s Rules for heaven sake. Have you met your uncle? Remember your uncle last Thanksgiving? (If you have questions go talk to an attorney). This is just to get all y’all thinking.

So, what actually is a non-compete clause? It’s just like it says on the label, an agreement with your employer, it could be in writing or verbal or signed, not to compete with the employer after the employment relationship has been terminated.

The point of such an agreement is to make sure that, when you leave that job, you don’t set up shop across the road doing the same thing and using the customer list you took from your old job, or sell the knowledge or skills you acquired on this job to the competition. Makes sense right? You can’t learn the Colonel’s Secret Recipe of herbs and spices then quit and open your own chicken shack, or everyone would do just that and no one would give anyone a job because they would be training and setting up the competition.

The problem is such agreements lead to abuse. If I’m the boss, I want to hire talented people and I don’t want them taking that talent elsewhere-so I make my job offer contingent on an agreement not to work in the same industry or in the same geographic area for 2 years if you quit or are terminated. But the reason I hired you is this industry is what you do. If you can’t do it for two years if you quit then what can you do? You are kind of trapped in this company now, unless you can move outside the geographic boundaries of the agreement or live without a job for a couple of years. This gives license for an employer to mistreat employees because they CANNOT quit.

Because of the potential for abuse courts are suspicious of them generally and not every state allows this kind of agreement under statute. Oklahoma bans them out right. See 15 OK Stat § 15-219A (2014). California doesn’t like them. Its State law says they are not allowed, but in practice they may be allowed sometimes to protect Trade Secrets. Cal. Business & Professions Code sec. 16600. New York is contemplating banning them (more on that later) and Massachusetts is trying to prevent abuse by making it unattractive for an employer to enforce one.

I’m already hearing snoring out there so I will try to spice this up a bit!

Suppose you go to work for a VRS company, they are going to want you to sign all kinds of crap before you can sit in the chair and do your thing. They may want you to sign an NDA (Non-Disclosure Agreement).(As the FCC covers the VRS interpreting part of this by strict legal requirements regarding privacy the NDA covers the workplace itself). You can’t tell anyone outside the company what the office looks like, or the equipment or way you log-in and out of the system… seriously. This stuff is protected. When in doubt just don’t talk about it!

Assignment Agreements… hummm… Proprietary Information and Invention Assignment Agreement, or PIIA for short. That is when you agree that anything you invent or think up while working for them belongs to them. These agreements are iffy, yes, but still may be enforceable. You know what? That is its own Note (I’ve seen these pop up lately in VRS employment agreements). Long story short these are hard for companies to enforce if you can show you created the workshop or did the research on your own time and without company funds or equipment.

Non-Compete Agreements. Ok they could be included in the middle of a whole lot of other clauses in a contract or a stand alone document. Ether way the first thing you need to know is a Non-Compete Agreement is a contract. Even if it’s in the middle of another contract, in some states it is still a separate contract.

What is a contract you ask?

A contract has three parts:

Offer;

Acceptance; and,

Consideration.

The first two are pretty well taken care of the minute you sit your butt in the chair. The third is more complex. Consideration is “the price of the agreement.” Each side is getting a benefit-the company gets your work and you get a paycheck but what are each of you paying for the non-compete? You are paying with giving your right to go work somewhere else and the company? Is giving you a paycheck? But that is for the work you are doing not the agreement not to compete. Remember, that is a separate contractual agreement. Some states say the company has to pay you something separate for that, others say continued employment is the consideration paid by the company. That always seemed like a threat more than a payment but the law is rarely pretty. Check with a lawyer in your own state!!!!

Here is the crux of it. Can a company just require you to sign away you ability to work as a VRS interpreter with anyone else as a condition of employment? No. (Maybe).

Non-compete clauses are there to protect from you walking out the door with trade secrets or goodwill (the client’s have not bonded with the company so much as with you and will follow you out the door) or with their extraordinary investment in training or education. These are the things a non-compete is supposed to cover.

So. Ask yourself VRS interpreter, what do you have when you leave that you did not have when you walked in?  I don’t mean to offend but VRS interpreters are like fast food workers, we are not getting and MacDonald’s secrets that we are selling to Burger King. You come, you do your job, you go home. We really came in with the skills to do the job and have the same skills when we leave. (Don’t get too comfortable wait till we talk about Jimmy Johns!)

Do you have a customer list? No. Do you have any special knowledge about the algorithm or programming or mechanics of how VRS works, I mean technology wise, that you could sell to a competing VRS company? No. Are customers going to change VRS provides because you stopped working for one and started with another? No (they don’t even know your name). Did the VRS provider train you to interpret or did they hire you because you already knew how? Is there a unique or secret interpreting technique used by THIS VRS company that others are just DYING to get their hands on? No. Last but not least, did they invest a great deal of time and money in your training? Maybe. Did they pay for workshops? Did they pay for your certification testing? That is where it gets sticky. Courts will likely have to decide if they are enforceable or not.

So in places where non-compete agreements are allowed there are some general rules to how courts test if non-compete agreements are valid or not.

Courts want to know if the non-compete agreement is a product bad faith in the negotiations, in other words is the company using this for an illegitimate purpose (indentured servitude-you can’t leave so we don’t have to pay you well or treat you well) ; is the non-compete agreement necessary to protect legitimate business interest (is there really something you could walk out the door with that would hurt our position in the market or help our competitor); reasonable in time, space, and scope; consideration of hardship (does it say you can’t work in this field anywhere in the whole country forever?).

Consideration of hardship, would enforcing the non-compete agreement just be bad policy. For example in New York the court agreed that Jimmy Johns could enforce its non-compete agreement which stated that after an employee left they could not work for a competing sandwich maker, or any company that derived more than ten percent of its income from putting meat and cheese inside of bread located within 3 miles of a Jimmy Johns for two years. Think about that. What trade secret would a jimmy johns employee have? Jimmy Johns are so prevenient that the 3 mile rule covers most of the US. MacDonald’s-out, Burger King out. Any restaurant that serves subs or wraps-out. According to the New York court you could not work at an amusement park that sold food or s bowling alley if the snack bar sold sandwiches if there was a jimmy johns within three miles. What if your company has cafateria? It would depend on if the cafateria constituted at least 10% of the businesses earnings.

I tell you this because I have worked in VRS and other industries that have required non-compete agreements and I signed them. On two occasions I have received very stern cease and desist letters telling me I could not work at the place I was going to work. I wrote the attorneys back on both occasions told them how adorable I though their cease and desist letters were, explained what a non- compete clause was, wished them all the luck in the world in enforcing it. But I’m me. And it’s fun to be me.

Talk with an atty before you sign one!

Last comments. After the New York court supported Jimmy Johns, the New York legislature started working on making such oppressive non-compete clauses illegal. Jimmy johns was sued in several other states and after having to pay out hundreds of thousands of dollars (over 100,000 in Illinois alone) had dropped its non-compete agreement from its conditions for employment.

Massachusetts has been trying to pass a law that says if a company tries to enforce a non compete agreement it must pay 100% of the former employees highest pay rate for the duration of the time the employer is not to work in the industry (didn’t pass this time but keep trying Massachusetts!)

I know I make even the shortest story long but the point of all of this is non compete clauses are generally disfavored. But don’t treat them lightly.

http://big.assets.huffingtonpost.com/FACExhibitA.pdf