09 Mar Growing Pains
Growing pains in a profession, or an association, can manifest themselves in many ways. We at NAJIT seem to be experiencing one of those right now on the question of professional fees. When can we talk about them? With whom can we discuss and share them? Can fees be published? It is a bit of a mystery to some, for others, it is a painful wound that left a very nasty scar, and there may even be those for whom it is a non-issue.
Let me give you a bit of a backdrop for this recent discussion on NAJIT’s Listserve if you have joined the profession in the last 2 or 3 decades.
When judiciary interpreting was starting to form its own identity back in the late 70s and early 80s, separate from conference interpreting, there were concerns about those who had no formal training, or those working with no credentials other than being “bilingual”. How was this going to impact those interpreters who had been formally trained and now had to compete with those who were not? Would the homespun bilinguals infiltrating the field command the same fees as the newly-certified interpreters, or would they lower the market’s threshold for these highly specialized professional services? These were all legitimate questions and some organizations thought it was their role to address these questions by dictating who could get paid what and when. Some even had model contracts that, in the best-case scenario, interpreters were free to use or, in the worst-case scenarios, interpreters were required to use.
Well, it did not take long for the Federal Trade Commission (FTC) to take a closer look at these comings-and-goings, but they did not circumscribe their investigation to those organizations dictating fees and working conditions for interpreters and translators. They investigated all professional associations for interpreters and translators, which at the time were basically AIIC, ATA(*), NAJIT, and maybe one or two additional and smaller U.S.-based organizations. The smaller ones succumbed to the financial burden and disappeared.
Why did the FTC get involved? Because there are federal laws that prohibit price-fixing, which essentially impedes free market competition. They are known as anti-trust laws and the FTC thought interpreters and translators associations were violating these laws. The Department of Justice’s webpage offers a fairly easy to understand definition of anti-trust laws: “Essentially, these laws prohibit business practices that unreasonably deprive consumers of the benefits of competition, resulting in higher prices for products and services.” [https://www.justice.gov/atr/antitrust-laws-and-you] It was not enough to tell the FTC, “we’re not doing that!” The associations had to “show” they were not violating anti-trust laws, which, of course, meant hiring attorneys. Attorneys are not cheap, not even when defending non-profits. Membership dues that should have been used for concrete member benefits had to be diverted to pay these legal fees. The experience left those leading the organizations at the time with a very bad aftertaste.
Although NAJIT was cleared of any wrongdoing, a very expensive lesson was learned. The FTC issued an order to AIIC that every NAJIT board of directors has been careful to heed since then (1997). Here are some of the highlights:
Definition of “fee”: any cash or non-cash charges, rates, prices, benefits or other compensation received or intended to be received for the rendering of services, including, but not limited to, salaries, wages, transportation, lodging, meals, allowances (including subsistence and travel allowances), reimbursements for expenses, cancellation fees, recording fees, compensation for time not worked, compensation for travel time, compensation for preparation or study time, and payments in kind.
What the FTC ordered AIIC to cease and desist from doing, among other things:
(A) Creating, formulating, compiling, distributing, publishing, recommending, suggesting, encouraging adherence to, endorsing, or authorizing any list or schedule of fees applicable in the United States for interpretation, translation, or any other language service, including, but not limited to, fee reports, fee guidelines, suggested fees, proposed fees, fee sheets, standard fees, or recommended fees;
- Entering into, adhering to, participating in, or maintaining any contract, agreement, understanding, plan, program, combination, or conspiracy to construct, fix, stabilize, standardize, raise, maintain, or otherwise interfere with or restrict fees applicable in the United States for interpretation, translation, or other language services;
- Suggesting, urging, encouraging, recommending, or attempting to persuade in any way interpreters, translators, or other language specialists to charge, pay, offer, or adhere to, any existing or proposed fee for transactions within the United States, or otherwise to charge or refrain from charging any particular fee in the United States.
What the FTC did not prohibit in its order to AIIC, among other things:
- Compiling or distributing accurate aggregate historical market information concerning fees actually charged in transactions in the United States that were completed no later than one (1) year before the date of such compilation, provided that such compilation or distribution begins no earlier than three (3) years after the date this order becomes final, and provided further that such information is compiled and presented in an unbiased and nondeceptive manner that maintains the anonymity of the parties to the transactions; or
- Collecting or publishing accurate and otherwise publicly available fees paid by governmental and intergovernmental agencies or pursuant to a Negotiated Agreement, if such publication states the qualifications and requirements for a person to be eligible to receive such fees.
So, what is the danger of discussing fees on the NAJIT Listserve? If even a single one of NAJIT’s members suggests, urges, encourages, recommends, or attempts to persuade in any way (other NAJIT members) to charge, pay, offer, or adhere to, any existing or proposed fee on the ListServe, then NAJIT becomes exposed to an FTC investigation, with the resulting legal fees expense. Who pays those fees? All NAJIT members do, because that money necessarily comes from your annual dues.
While this is still a very neuralgic issue for those who still remember the FTC inquiry, I hope that those who don’t can now have a better picture of the parameters the NAJIT leadership has been trying to work with in order to avoid another unpleasant and unnecessary confrontation with the FTC.
You can access the full text of the order here and read it at your leisure. I’m pretty sure many of you will still have questions but let me just say that NAJIT does not have the resources to answer all your legal questions. Please seek legal counsel if you have any questions about the scope of the U.S. anti-trust laws and how they can affect your professional practice.
(*) AIIC: French acronym of the International Association of Conference Interpreters; ATA: American Translators Association.
Janis Palma has been a federally certified English<>Spanish judiciary interpreter since 1981. She worked as an independent contractor for over 20 years in different states. Her experience includes conference work in the private sector and seminar interpreting for the U.S. State Department. She joined the U.S. District Courts in Puerto Rico as a full-time staff interpreter in April 2002. She has been a consultant for various higher education institutions, professional associations, and government agencies on judiciary interpreting and translating issues. She is a past president of the National Association of Judiciary Interpreters and Translators.
5 thoughts on “Growing Pains”
Thanks, Janis, for this helpful post! The circumstances you describe in this post prompted ATA to develop an antitrust compliance policy for our members. You can view it here:
When I talk to ATA members about this, I emphasize a few things:
-Because professional associations bring together large groups of people who do the same job, and in many cases work for the same clients, they are held to different standards than individuals are. For example, a post about your rates in an association-sponsored forum *could* prompt other people to take a collective action (i.e. raise or lower their own rates) that would be construed as anticompetitive.
-It is true that some “associations” publish recommended rates for their members or encourage their members to publicly discuss their rates, or agree not to work for less than certain rates; but that is most often because those “associations” are incorporated as labor unions, whereas ATA, and perhaps NAJIT as well, is incorporated as a business league.
-The heart of the issue is not related to providing factual information about what one’s rates are, but offering pricing recommendations or encouraging collusion around pricing, discussing “the going rate” for certain services, what certain clients might or might not be willing to pay, what someone should or should not charge, etc. That’s where things get into antitrust territory.
Thanks for the post!
Corinne McKay (ATA President 2017-2019)
Thank you for this awesome post, Janice. Really helpful. And I appreciate Corinne’s comments, as the difference between business leagues, unions and privately held entities is very pertinent when members of the profession analyze the various ways in which these issues can and are discussed in different fora.
Thank you both!
Thank you for the additional information, Corinne, and for your comments, Melinda. I am really glad you find this helpful, and hope it answers a lot of questions that lingered as a result of some ListServe threads, or leads NAJIT members in the right direction to conduct their own research on this very complex issue.
Here’s a link to the case that led to the ruling in question which was upheld on appeal:
Always remember, we are in the business of selling words, not diamonds. You can only take the “going rate” quasi-unionized thing so far before free market capitalism sets you straight and brings you back to reality from the Prima Donna Narnia forest. Always be open to negotiation, be reasonable, deal with honesty and integrity, and don’t be intransigent in the face of reason and you will do just fine, for the long run. Or don’t, and sooner than later free market capitalism will turn you into another fly-by-night, because you did not heed advise and shot yourself in the foot. You know where they fixed prices non-stop and still do? VENEZUELA. We don’t want that now, do we? It works both ways. You can’t be going around saying, “The going rate is 2 hours minimum + 2 hours travel + free lunch + gas money + happy ending…” and expect to be taken seriously in the real world. Agencies that deal honestly with freelancers also deal honestly with their clients. The freelancers ARE the agencies’ main clients, more so than the end users of the service are. Agencies engage in actively ensuring the fair treatment of the freelancers that work with them, and always try to get them the best possible outcome based on the nature of the assignment, the budgetary constraints of the clients, and an endless amount of possible reasons too numerous to even begin to list. Always be willing to negotiate and remember that the agency you work for, if it is being run honestly and efficiently, isn’t out to screw you out of any of your money. They have overhead and profit margins they need to protect in order to keep the machine running, the cash flowing, food on everyone’s table and a fresh diaper on every baby. You know, I rarely say anything at all about anything, uh, at all… LOL, but Ms. Palma is so tuned-in to the industry, she brings me out of my chilling cryostasis. I’m not going to give you a bio or anything like that. Suffice it to say that I have dealt with this issues since we carried beepers and used public phones that cost a dime. Okay, I’ve just gone and depressed myself something awful y’all. Back into cryostasis now.
BTW, Janis… WOW!