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.

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 develop “a relationship,”  sometimes beyond the realm of “nose touching,” maybe even friendship.  But, that can lead to problems of its own. Line between friend and professional can be dangerous if it’s blurry.

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’m deaf on ambivalence does not diminish the importance of what I do or my love of doing it. It just keeps my head in the right place so I can do it 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.

Rule 263

VRS Call Center, Saturday 2:30 AM. Your mother was wrong! Those smutty novels weren’t a waste of time; they developed your Extra Linguistic Knowledge for this call!

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.

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