Uncle Dale’s “You Probably Should Know”: Where Do Section 504s Come From?

So the other day three people, a student who is Deaf, a hearing student who knows some ASL and an interpreter came to my office to ask some questions.  In the middle of a great discussion on many topics related to education they, as a group asked:

“What is the difference between the ADA and Section 504?”

That is a good question. The answer is A LOT! For example one is three letters and one is three numbers.  So, can you be more specific?

After a little negotiation to help them frame the actual question (many people would be shocked, I think to realize how often helping students figure out the question is much more important than helping them find the answer) they decided that they wanted to know why a person would choose to use 504 and not the ADA, or the ADA and not 504 or, you know, both at any given time. 

Now that is a question I can answer! It gives me some direction and I can do it… but not in one go.  We are going to be on this topic for a while. 

Ok, you remember how as a kid you had to eat your vegetables first. You wanted dessert but you had to get through the stuff that is good for you first?  

There are answers you want! Now.  You want them right now! You are itching for them, and I could give them to you. But without context the answers I give will be interesting but not helpful. All sugar and no vitamins. 

I am going for helpful. Sorry.  It’s what I do. 

If you want to know the how and when of 504 being useful, you have to start with why.  Why is 504 in the first place.

You have to start with Authority.  So. Here we go.

The 10th Amendment to the Constitution says that Congress can only pass laws on issues or matters that the Constitution specifically gives them the Authority over.  If the Constitution is silent then… no. No Congress can’t.  

If Congress “can’t,” then the authority over THAT (whatever THAT is) is reserved solely to the States (that’s States, Utah, Mississippi, Iowa, Massachusetts…)

So pop quiz hot shot! Where in the Constitution does it give Congress the authority over people who are Deaf? Or over Disabilities?  Go ahead and look for it.  I’ll wait.

Hint? It doesn’t. 

So… how?

Authority is a strange animal.  It lives in various climates and walks on many planes.  That sounded more mystical and shaman like in my head.  Whatever.  

Taxes

Taxes are where Congress gets its authority to pass a law like 504.  Article 1 Section 8 of the Constitution gives Congress the authority to collect taxes and to expend money.  If you can do that then you can choose upon which items you will spend the money.  It’s called “Carrot and Stick” policies.  

Here is an example.  Back in the late 1960s and early 1970s America was in the middle of a gas crisis. The Feds (read Congress) wanted everyone to drive 55 mph. But the Constitution does not give Congress the authority to force States to do that–or anything really. 

So, it came down to money.  

If a State set their speed limit at 55 mph they got federal highway funds (carrot) and if the State did not, they got no funds (stick). 

This is the same reason why all States now have laws saying you have to be 21 to buy alcohol,  and 18 to vote. If States adopted those laws they got funds for drunk driving prevention programs and police equipment and new voting machines. Get it?

So that is the authority Congress used to pass 504. But with 504 the authority attaches to everything. If you accept federal money for almost any thing you can’t discriminate against people with disabilities, according to 504.    

Next problem, the whole of Section 504 is about a paragraph long. Seriously that’s it.  So it has no room for explanations of what discriminate means, or who a person with a disability is or even what it means to accept federal funds

So, all the different Executive Agencies made their own Regulations, basically wrote their own definitions of all those things.  

If you want to know what discriminate means for a hospital you must look to the Regulations from the Department of Health and Human Services and not the ones written by the Department of Education… unless it is discussing a student who is hospitalized long term.  How does the term Disability apply in an employment setting? The EEOC has the regulations for that, but not if you are an independent contractor, for that the Department of Justice wrote the Regulations. And so on.  The Regulations often are similar but rarely the same. 

Yes, it’s labor intensive, confusing and… mistakes are made. Grin. 

Next problem, what does mean except federal funds. Also sometimes a little confusing. 

With State agencies and other executive branch government entities you can usually be pretty sure they accept federal funds under 504, particularly after 9/11, because the Department of Homeland Security made it rain!  

Many private businesses also accept federal funds in fact more than you would think. For example hospitals clinics and doctors that accept Medicare and Medicaid are accepting federal funds. Private colleges and universities who accept federally subsidized student loan’s are excepting federal funds (even the local college of massage therapy or the college of hair design if they get federally subsidized student loans). 

There are some weird limitations to whether 504 applies in some stipulations but not as many as the ADA. For the most part “youse takes the money youse follows da rules.”  The weird stuff I will discuss it all later vlog. 

Ok here we are, authority.  This you will find out is the magic key you need to make 504 work.  If you know that the entity accepts federal funds BANG your in… if you know which Regulations apply.  

The ADA is not so straight forward.  We will talk about that later too.

Finally, an interesting problem that has been solved (just to give you hope).  when Section 504 of the Rehabilitation Act of 1973 was passed it did not have a great deal of clarity on how it was to be applied (you may argue that is still true). So universities, for example, argued that classrooms didn’t accept federal funds and so they didn’t have to be accessible, only the office of student loans accepted federal funds so only that office had to be accessible. Courts agreed.  No joke.

Congress fixed that problem in the late 1980s by passing a statute called the Civil Rights Restoration Act that said if you except federal money in one area of your entity it covers everything that benefits from the money. So in a practical sense, everything.

There you are, quick and dirty on the authority Congress used to pass Section 504.  Next we’re going to talk about the ADA. The authority for the ADA will take at least three vlogs. Yeah, it’s that complicated.  But we’re done you will understand enough that you can take advantage these laws, know how each is applied and you should have an idea  at least as to when it’s best to use one over another… or both!

Remember! Uncle Dale’s Rules may be informative but it is not a substitute for legal advice. If you want information on any of the topic contained herein please talk to a lawyer in your area.

Uncle Dale’s “You Probably Should Know”: Living Wills

Hey everyone!  So last week a former student/current rocking interpreter asked me over Facebook how to interpret the term “Living Will.” This of course set off a firestorm of opinions on leaving it to the lawyer/doctor/other person to explain what is means or the Deaf client to ask what it means.

Totally not getting into that discussion.

But, I will say it never hurts to know what it means yourself, because you are going to have to interpret it (no matter who digs for the deeper meaning), and if you are relying on an attorney to say anything that anyone but another attorney would understand you have not met many of us!  We suck at explaining… bad… way bad!

Anyway, the real problem with the term “Living Will” is that if four people say it there will be seven different meanings intended–“Living Will” is the Aloha of testamentary terminology, people use it to mean everything.

So lets go through what we are talking about: What happens to my stuff after I die and myself while I die.

Trusts.

There are two kinds, Intervivos and Testamentary. Intervivos holds your stuff while you are alive and is usually revocable (you can change it or get rid of it while you are alive) but becomes irrevocable when you die… cuz you’re dead.  Testamentary Trust are set up by another instrument, like a Will, and only are declared after you die.

Both of them hold your stuff as if they were legally a person.  Trusts are usually set up with specific rules like “this is to be used for my kids education” and so living or dead that is what the trust can be used for.  Most are time limited so if anything happens to you the Trust will do its thing until the kids are 22 or 23-years-old (I never advise a client to make the Trust distribute is corpus to a 21-year-old because I knew me when I was 21-years-old).  Lots of people want Intervivos Trusts, fewer people need them.  The tax advantages only kick in north of 5 million dollars.  They are good for multiple marriages and kids from each marriage.  Testamentary Trust established by a Will are good for people with young kids.

A Will.

Like a “Last Will and Testament” Will.  This is good for making sure all your stuff gets to the people who you want it to go to when you die.  These days most stuff passes through an “extra-testamentary” document–as a beneficiary of an insurance policy or joint accounts or joint tenancy in the ownership of a house. A Will catches everything else so there is no dispute as to who gets the stuff.

A Living Will.

When people say Living Will they could mean any number of Advanced Directives (directions you give before something happens).  An ACTUAL Living Will gives instructions of what you want done or not done medically if you are unconscious or otherwise unable to give competent instructions as to your wishes.

A Medical Power of Attorney or Healthcare Proxy (sometimes called a Living Will) designates a person to relay your wishes is for some reason you cannot do it yourself.  Not their wishes for you but having told them what you want they accept the responsibility to relay your wishes.

Then there is a DNR-Do Not Resuscitate.  Just like it sounds, if certain conditions are present just let me go.

There you go! and remember Uncle Dale’s Rule may be informative but it is not a substitute for legal advice.  If you want information please talk to a lawyer in your area.

 

Uncle Dale’s “You Probably Should Know”: Employee vs Independent Contractor (MLM)

I got this question a bunch this week. Many people who are Deaf and a few interpreters are outraged because there is a multi-level marketing convention in town and it has refused to provide interpreters because it says that the Deaf attendees are not “employees.” The MLM is right, they are not employees-but 100% wrong that it does not need to provide interpreters for them.

If you are not familiar with the idea of an MLM, it’s one of those companies that sells soap or skin care products or essential oils or found some awful tasting fruit that they now sell as a health drink.  They don’t sell them from stores or on-line. One person gets a few sales reps “under” them or in their “downline” who then get people “downline” from them and so on and so on… its a huge business.  

Anyway.  Most of these companies are run by lovely people, but every now and again I run into this issue.  A Deaf person joins the group as a sales rep and buys a ticket to a MLM convention (where they have motivational speakers and sales trainings and opportunities to network and build your business) as all sales reps are encouraged to do.  The person who is Deaf requests an interpreter and the MLM says no.  The MLM doesn’t believe it has to because, as I said, the person who is Deaf does not “work” for the MLM; the person who is Deaf is not their “employee.”  The MLM is right.  The person who is Deaf is an independent contractor.  If they try to force the issue using Title I the person who is Deaf will lose because Title I does not apply.

But, if you are not an employee you are “the public” and that falls under Title III.  Once a person who is Deaf bought a ticket to the MLM event that person became a “qualified person with a disability” under Title III (I know the who disability thing leaves a bad taste in your mouth–I wrote a paper on it, me too–but if you want to use the ADA…).  A person with a disability because the Deaf person is… well… Deaf, and qualified because a person is qualified to attend the MLM event if that person has a ticket to the event.  So when the MLM said it would not provide interpreters the person who is Deaf got the last thing they needed to have “standing” (the legal ability) to sue.

[t]o establish Article III standing, a plaintiff must show that: (1) she has suffered an ‘injury-in-fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to being merely speculative, that the injury will be redressed by the relief requested. Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004).

MLM’s at this point will scream and cry that is not on the list of “places of public accommodation” that is contained within Title III, it is not a store nor does it maintain a place that “accommodates” the “public” (not the same thing as a reasonable accommodation— different thing/similar name… different discussion for a different time).

Again, the MLM is right.  It is not on the list of “places of public accommodation” found in Title III.  But the convention center it is using for the convention is.

“Oh,” you say, “so the convention center must provide the interpreter?”  Nope. Well, the MLM can allocate the responsibility to provide interpreters to the convention center by contract… but usually the convention center will be responsible for the physical accessibility (more permanent structures) but the MLM is “operating” the venue (selling tickets, controlling access…) so the MLM would be responsible for non-structural access (psst. interpreters).

The person who is Deaf paid a price to attend the conference, the conference is held in statutorily defined place of public accommodation and the place public accommodation is operated, at least for the duration of the conference by the MLM, which Title III says makes the MLM, for the time frame of the conference at defacto public accommodation (even if the “lease” of the space is for a very short time).

So an “independent contractor” sales rep has the ability to enforce the ADA against an MLM using Title III, not because the person who is Deaf is an independent contractor… but because the person is NOT an employee, just a qualified member of the public.

I included a case that shows how it all works.

Jensen v United First Financial

http://cases.justia.com/federal/district-courts/utah/utdce/2:2009cv00543/70925/20/0.pdf?ts=1411581661

This blog and the attached vlog are informational but not meant to be legal advice or replace discussing your situation with a licensed attorney in your area.

Uncle Dale’s “You Probably Should Know”: How to Request A Live Interpreter at the ER

I did this for our local Association of the Deaf.

How to request a live terp

This blog and the attached vlog are informational but not meant to be legal advice or replace discussing your situation with a licensed attorney in your area.

Uncle Dale’s “You Probably Should Know”: Interpreter Requests (Title I)

As I’ve mentioned, Aunt SuperTam says when I say “probably” I mean “definitely.”

These posts are designed to answer the most frequently asked questions I get from both interpreters and the Deaf Community; specifically the answers everyone should already know but rarely do!

Now. I know this blog is aimed at interpreters… but it’s vital for interpreters to know how the ADA, 504, IDEA… work; because these are the waters of the pool we all swim in each day.  That and Rule 11.  Read Rule 11.

https://uncledalesrulesforinterpreters.wordpress.com/2017/03/10/rule-11/

So.  If a person who is Deaf requests an interpreter what happens next?

(I mean of course what should happen next, according to law and policy, which is not always the same as what actually does happen.)

So what should happen if the request is made to the boss or at work (assuming the business is obligated to follow Title I of the ADA or Section 504) the employer then has an obligation to engage in a “meaningful dialogue.”

This dialogue is a legally required discussion to determine: if an accommodation is needed; if the accommodation would be reasonable; and, if it would not create an undue hardship (parenthetical digression time! Title I of the ADA uses the words “undue hardship” to mean the same thing that Title II and III call an “undue burden.” Same meaning, slightly different words. Why? Well, I have heard AN explaination… I’m not sure it’s THE explaination.  Regardless of why- that is a story for another time). An undue hardship/burden does not mean “expensive” or even “very expensive.”  In the context of employment it requires an extensive analysis. Many employers seem to think it means “if it costs us money we don’t have to” but that is just not so.

That being said, the laws as written don’t require the employer to provide an interpreter; only “effective communication.” Even effective communication is only required if the communication to be accommodated is for something that is considered to be an “essential function” of the job (getting hired is usually considered an essential function but, according to the 11th Circuit getting fired might not be).  The employer is given a lot of leeway to determine what is an essential function and what is not. If there is a written job description courts give it a lot of deference.  But if the function was never mentioned before the Deaf person showed up (suddenly the job requires telephone skills, but that has never been listed as a requirement until now…) the EEOC and the courts get very suspicious.

If a person who is Deaf has to file a complaint with an administrative agency like the EEOC (a necessary step before court*) the Deaf employee only has to show that it likely discrimination occurred and A) the function was essential; B) the employee requested and accommodation; C) the employer did not provide it; and D) the lack of effective communication had a detrimental impact on the employee.

Once this quite low threshold is met the burden shifts to the employer to show there was a legitimate business reason for their actions that was not discriminatory (burden shifting or the McDonnell-Douglas rule). Once that threshold is met the burden shifts back to the employee to prove that the business reason the employer stated was not legitimate but was just an excuse for discrimination (it was a “pretext”). The courts and administrative agencies tend to give a person who is Deaf’s request for an interpreter with a great deal of weight. This tendency to accept the person who is Deaf requesting an interpreter at face value, if they ask for one it is likely they need one, is somewhat unique the Title I (it is not so with Title III).

In a perfect world the Deaf employee asks for an interpreter, then the boss and the Deaf employee meet, they hammer out when accommodations would be required (what kind of thing requires and interpreter and what could be handled with notes or, honestly, with just pointing), a means to schedule interpreters for essential functions is agreed upon, and everyone goes back to work.

The world is generally not perfect.

Many employers don’t know their obligations.  Many Deaf employees don’t know their rights or how to enforce them.

So, when should a Deaf employee request an interpreter?  Many are reluctant to ask for one at the interview stage (a little hint, a person who is Deaf does not have to mention that they need an accommodation until they are asked to interview. The EEOC and Courts are verrrry suspicious of companies who “disinvite” people who are Deaf to interview for a job after a request for an interpreter.)

If a person who is Deaf already has the job then they should request accommodation when things are going good; in the honeymoon phase after they are hired.  Asking for an accommodation always goes over best if it’s not in response to a problem, but you can point out to the boss that the company can prevent problems and invest in the development of an amazing employee by removing or reducing barriers to communication!

The employee who is Deaf will normally get some push back. For example the boss will say, “you’re doing fine! We communicate fine.”  I have found the best response to that is “thank you.  I would like to keep it this way. Please consider my request and I would ask you to document this discussion in the file so we can refer to it later if we need to.  I am trying to set up a forward thinking plan to avoid problems that might disrupt productivity. As a person who is Deaf, I want to be the best employee you’ve ever had. Part of how I can do they is by preventing an issue before it starts, so I am going to ask that my proposal and the information on contacting interpreters just stay in my file for future reference.”

These steps apply if you are working for a private company or the government (except the States, Title I doesn’t generally apply to States, only 504 applies to States.  Long story. Do I really want to tell it now? Sigh. Ok).

If the Constitution does not specifically give the Federal Government authority to do something then that authority is reserved for the States (10th Amendment). So Congress cannot pass laws unless the Constitution gives it the specific authority over that thing.  Read the Constitution allllll you want it never even says the words Deaf or disability.  So how can Congress pass something like the ADA? Congress has to get its authority from somewhere.

There is a second problem I should mention.  It’s called Sovereign Immunity (connected to the 11th Amendment). This comes from a principle held over from the English.  It’s says “you can’t sue the king without the king’s permission.”  The 11th Amendment has been interpreted to say “you can’t sue the State without the State’s permission (that is not what the text of 11th Amendment says however… don’t get me started…).  The State actually gives permission more often than you’d think.  If the State doesn’t give permission congress can get around the 11th Amendment/sovereign immunity barrier because the 14th Amenment gives them the authority to do so (remember? 10th Amendment?) IF (oy always with the if) there is a history of discrimination and the law congress passes using the 14th Amendment is the least burdensome means of correcting the history of discrimination.  A few years ago the University of Alabama made the argument that it was reasonable to demote a nurse with breast cancer because Congress had not proven that there was a history of States discriminating against people with disabilities (psst there are pages and pages of examples going State by State in the Congressional record).  The Supreme Court agreed with the University of Alabama and found that Congress lacked the authority to force States (but not counties, cities and towns) to be obligated by Title I  and so Title I went away as it applied to State jobs (not private companies though. Private companies still have to follow the ADA Title I because the part that obligates them uses a different authority).  Have no fear, Section 504 still applies and does basically the same thing as Title I (again 504 uses a different authority).

“If section 504 applies and does basically the same thing as Title I why is any of this important for us to know” you ask? Well, I’m glad you asked.  It’s important because over and over people who are Deaf tell me the name of the interpreter from whom they are getting their information about the ADA.  I’m not making any accusations that interpreters are wholesale violating the CPC (not wholesale, maybe retail… you know what? We need to have a long chat about the CPC and how we see it as a profession…)! I’m saying they sit in the lobbies of Deaf centers and at Deaf events and chat with Deaf friends or, shudder, ‘after the appointment is over’ which is a generally misunderstood time frame or perhaps even in the neuance of your interaction during an interpretation (read up on “interpreter role-space”) and interpreters say, often and with conviction, “that’s a violation of the ADA”… with NO IDEA if it actually a violation (Because RULE 11).

And then the Deaf State employee says to their supervisor “that violates my rights under the ADA” (because Rule 11 has a long reach) and the supervisor, knowing the ADA does not apply, continues to be a jackass because the supervisor knows that ADA does not apply and that the person who is Deaf does not understand their rights (At this juncture and by all that is holy stop reading this and go directly to the works of the brilliant Peter Llewellyn-Jones and Robert G. Lee on the topic of “Interpreter Role-Space”).

I leave all y’all with this thought.  If States are not obligated to follow Title I of the ADA because it was passed under the authority of the 14th Amendment and the Supreme Court said Congress did not prove a history of discrimination and so lacked the authority… what about Title II which applies only to government entities and was passed wholly by the authority of the 14th Amendment?  That is a complex discussion! We will save that for next time.

*ok the timelines on this are weird too.  You have to file your complaint with an administrative agency first. You have 180 days from the date of the most recent act of discrimination to file with the EEOC, unless your state has a state level agency for workplace discrimination (Utah has UALD and Massachusetts has MCAD), then you have 180 days to file with that State level agency and 300 days to file with the EEOC.  I know. “What the…” I know. Anyone who likes law or hotdogs should never see either being made.

Uncle Dale’s “You Probably Should Know”: The Affordable Care Act and Interpreters 

OBAMACARE? Yow! Thems fightn’ words!  I have another blog where I express my political views and try to keep this one more informative and neutral. At risk of being accused of political speech hear me out!  This is something you probably should know and a scary number of people don’t.

It has to do with hospitals and doctors offices providing interpreters; even live interpreters over VRI.

A little background first. The ADA has five parts called Titles (you will never use the last two). Title II applies to government entities. Title II of the ADA has what is called the “Primary Consideration Rule.”  What that means is when a person who is Deaf attempts to access government programs, benefits and services the government entity must give “primary consideration” to the auxiliary aid or service requested by the person who is Deaf.  What that means is the government agency must give the person who is Deaf the specific aid they requested, like a live interpreter, or the government entity must prove it was not needed.  It is not easy to prove something is not needed.

Title III of the ADA doesn’t say that.

Title III has to do with accessing the services of private businesses, like hospitals and doctors offices. Title III only says the private business “should consult with” the person who is Deaf. IT INCLUDES NO OBLIGATION TO GIVE CONSIDERATION TO WHAT THE PERSON WHO IS DEAF REQUESTS.

In recent years when the Department of Justice has settled cases involving people who are Deaf who sue government entities (the settlement agreements are called Consent Decrees) the DOJ has been including language that says the definition of “primary consideration” is that the government entity must ask the person who is Deaf what kind of accommodation the Deaf person needs*.  Think about that. Prior to that the expectation has always been that the government entity only had to give “primary consideration” to the auxiliary aid or service that the person who is Deaf ACTUALLY REQUESTED.  If the Deaf didn’t ask… too bad! But if that language becomes the standard then anytime the law requires “primary consideration” the entity or business must ASK the Deaf person what they want and give it to the Deaf person or have the burden to explain in court why it did not.

So compare that with Title III where the private business doesn’t even have to consider the request of the person who is Deaf… the law just says it should, not that it must.

Section 504 has always been somewhere in the middle of the two.   The regulations under the Department of Health and Human Services have much stronger language than “should” but still not as strong as “primary consideration.” For some weird reason HHS also limited the application of Section 504 to medical providers with 15 or more employees.  So many small town doctors are not required to follow 504.

Now. I CAN FINALLY get to the thing you probably should know.

A couple of nights ago I was meeting with a group of people who are Deaf and who had complaints about hospitals using VRI and mentioned the Affordable Care Act (Obamacare) and fully 2/3 of the people in the room groaned, rolled their eyes, or made a disgusted face (I will freely admit, the Deaf Republican has always been a strange notion to me) there were comments flying around the room about how terrible Obamacare is and supporting the Senate Bill.  At this point I got everyone’s attention.

“I will not have a political discussion here,” I said, “that is not why we are here-but I will tell you all something you probably should know.”

“Most of the hospitals we are discussing fall under Title III as they are private businesses.”  I explained what the concept of “should” to them.

“Only one of the hospitals is a government entity.” I explained the benefit ‘primary consideration’ like I did above.

“All of them must follow Section 504,” I explained, “because they accept Medicare.”

Here is kicker, ready?

Obamacare has a section called the nondiscriminatory rule or Section 1557.  It applies to any health program or activity, any part of which receives HHS funding, such as hospitals that accept Medicare or doctors who receive Medicaid payments; the Health Insurance Marketplaces and issuers that participate in those Marketplaces; and any health program that HHS itself administers (Medicare Part B is excluded).

In Section 1557 it states that covered entities must give “primary consideration” to an individual’s choice of aid or service.

Yes you read that right!

The Office of Civil Rights confirmed that all covered entities will be held to the higher standards established under Title II of the ADA, which requires covered entities to give primary consideration to the choice of an aid or service requested by the individual with a disability.

OCR also explicitly stated that the communications requirements of Section 1557 apply to all providers even those with fewer than 15 employees.

In essence the ACA/Obamacare makes the standard for Section 504 the same as the standard for Title II. It means that hospitals and doctors must give you the accommodation you asked for (or maybe even ask you what you want) and if they don’t the court will make them prove a live interpreter was not needed instead of requiring the Deaf person to prove it was.

If the ACA/Obamacare goes away, so does that protection.

You should probably know that.

*Primary Consideration. In determining what type of auxiliary aid or service is necessary to comply with the ADA, the ACSO agrees to give primary consideration to the expressed preference for a particular auxiliary aid or service by an individual who is deaf or hard of hearing. “Primary consideration” means that Personnel will inquire as to the choice of auxiliary aid or service of the individual and will honor the expressed choice unless the ACSO can demonstrate that another equally effective means of communication is available.  See Consent Decree for LAWRENCE et al., v. CITY OF ENGLEWOOD, et al., and ARAPAHOE COUNTY SHERIFF para 27 https://www.ada.gov/lawrence-arapahoe.htm 2013

This blog and the attached vlog are informational but not meant to be legal advice or replace discussing your situation with a licensed attorney in your area.

Uncle Dale’s “You Probably Should Know”: Agreements and Contracts 

The lovely and talented Aunt SuperTam says that when I say “probably” I actually mean “absolutely.” As in:

SuperTam: I’m right!

Me: Probably.

So, when I say interpreters should probably know this… well, you get the point.

I got a bunch of questions about contracts recently (one as recent as yesterday!) WAIT! Don’t go away.  This is actually less boring than it sounds. AND and there is a gift for reading to the end.  Here we go!

Rule 207 says interpreting without a contract means sooner or later just working for free.

Interpreting is a service, you can’t “repossess” it, once you provide it, it’s done and so is your leverage. So, providing that service without a contract in place beforehand means you accept the possibility that the entity that requested your services will just not pay you.  They may “roll the dice” on you not being able enforce your oral agreement with them or bet on you not pushing for payment under a theory like Quantum meruit (if you don’t know what that is then the odds of them getting way with it or you walking away without them paying you are in their favor).*

You need to have a contract or an enforceable agreement.

If you want to know how to write a contract talk to a lawyer in your area. This Post won’t replace the advice of an attorney; it’s just to help you think about what you and your attorney should discuss.

There are good examples of Terms of Service agreements used by other interpreters out there in cyber-space. It’s worth your time to look them over. The terms other interpreters use may or may not make sense to you at first.  There is a reason for that.

If you drive west on I-80 from Salt Lake City for about 40 miles and turn south around Dugway, then drive for several miles you will see a very large, very old billboard that reads “No Weapons Grade Nuclear Material Beyond This Point.”  You know why they put that billboard there? Because sometime or another they had a problem with that.

That is how contract terms are born, they fix a problem, and you may not have ever had that problem… but you don’t want it to happen once you know it could happen.

So… what problems do interpreters want to fix before they happen?

1. Pay

“Interpreter/Translator shall be paid a minimum of two hours and thereafter time shall accrue in units of 30 minutes each.”

“Rates: $150.00 initial two-hour minimum for interpreting services $60.00 per hour thereafter.”

Now, we all know what a two-hour minimum means.  But not everyone does.  I recently wrote a term for an interpreter that says:

Rates: $150.00 for the initial two-hours interpreting services, paid regardless of the actual time required to complete the interpreted activity less than two hours and $60.00 per hour thereafter. No other services are offered nor may be demanded of the interpreter. 

The interpreter showed up to interpret and the Deaf Client’s issue is resolved in 15 minutes, and the business claimed that if they paid for two hours she would stay the full two hours and handed her a stack of  papers to scan.  I kid you not.  So that is now a term.

You need to address special rate circumstances such as legal, Deaf/Blind andPerformance.  You may charge a differential for after hours.

2. Reimbursable Costs

Like mileage or parking or, depending on where you work, tolls, light rail or trains.

3. Unusual Travel/Time Cost

Travel of over 50 miles or requiring over 2 hours of travel or more one way should be billed portal to portal.

4. Coverage of Longer Appointments 

You will want a term that requires a second interpreter for appointments over two hours.  If you are so inclined you can offer to arrange this but make sure you include a term that absolves you from liability for the other interpreters actions and sets how you will be paid for getting the sub-contractor.

5. Cancellations and No-Shows

A “contract” is just an “agreement” and can be cancelled by either arty prior to any obligation maturing.  Wow there is more than you wanted to know, right?  What that means is a contract is not binding until one of the parties is obligated to do… something. So a term such as  Cancellations less than two business days before the beginning of the appointment will be billed for the full amount scheduled matures an obligation (the obligation to cancel) two business days prior to the  assignment and makes the whole thing enforceable.

You might also want to consider a specific term for appointments that require travel outside a radius of say 150 miles of your office or requiring additional planning, travel purchases, and hotel confirmations or appointments spanning multiple days.  I suggest requiring one week’s notice but I have seen terms of up to a month’s notice of cancellation to avoid being charged for the entire assignment.

No-Shows are billed without exception. Say that with me. NO-SHOWS ARE BILLED WITHOUT EXCEPTION!  Do not accept guilt when it is offered by others. You showed up.  You are not the Client’s keeper.  Client no-shows are a cost of doing business, but no your cost.  You showed up. One of your Clients showed up.  You did not call this meeting. You did what you contracted to do.

(Actual voice mail) “We just got your invoice and are frankly shocked you would try to charge us when your Deaf person (seriously… not the Client’s name, “MY Deaf person”) did not even show up.  We think you owe us an explaination.”   I gave them one:

“The Client (name) was scheduled for an appointment with your office, not with me.  I was contracted for an appointment at your office and I was there on time as ready to do my job as you were to do yours.  You may not and I will not accept passing your costs to me.  If you have any further questions I would refer you to our contract and specifically para. 2 wherein it states that I am paid a 2 hour minimum, initial-meaning that is the cost for me to show up, which I did; para. 4 that states No-Shows are billed without exception; and, para. 7 which explains the terms of payment.

Thank you for your business.

Believe it or not, they still call me when they have Clients who are Deaf.  It’s business not personal.

6.  Force Majure

This means one party or the other can’t fulfill the obligations because the very heavens have turned against them!  I suggest covering the most common acts of deity for your area specifically and others generally:

Cancellations due to weather will be billed unless otherwise negotiated or when a weather emergency has been officially declared by the authorities. Furthermore a party shall not be liable for any failure of or delay in the performance of this agreement for the period that such failure or delay is beyond the reasonable control of a party, materially affects the performance of any of its obligations under this agreement, and could not reasonably have been foreseen or provided against, but will not be excused for failure or delay resulting from only general economic conditions or other general market effects.

Not everyone feels the need to include these, but in this age of terrorism I am including these type of clauses more and more.

7. Payment Terms

Here is mine.  It’s pretty standard and I have seen almost exactly the same language in at least three Terms I found on-line.

Net due 30 days from the invoice date. Invoices paid within 15 days will be discounted 3.0%. Invoices paid late will be assessed an additional 5.0% for each additional 30 day period.

It’s a good idea to list all the ways they can pay you. PayPal is great. Venmo is my favorite.  Accepting credit card payments through Square is quick and easy but many banks have a similar system that charges a lower percentage so check with your bank!

8. Prices Subject To Change

Prices subject to change without notice. The prices listed herein are current as to the date of execution of this contract.  An up-to-date pricing list is available at my website. A notice will be emailed to the address on file if prices change more than 10% from those quoted herein. Scheduling an appointment will be considered agreement to pay current prices even if different from those listed above.

9. Subject To Availability

ASL interpreting services are subject to scheduling availability. This office reserves the right to refuse service to anyone at any time for any reason.

That is in no way a complete list of all terms that could be included.  The language is, as I said, just an example of standard language I have used or see used by others.  There are terms that may only apply to your geographic area you may want to consider.  In the end talk to a lawyer in your area.

I promised you a gift and here it is.  Almost every contract has a set of very standard terms.  Terms that are included if you are selling a car, hiring a landscaper, agreeing to trade goods for services or any other situation you can think to contract about.  Attached here are sample of standard language for those standard terms.  Again. Check with an attorney in your area before you cut and past them!

Have fun out there!

Services Contract Sample

*Someday ask me about the lawyer who taught me this lesson by refusing to pay me… it has a happy ending.