You can’t have your cake and eat it, too

It’s a lot of fun when you work in a venue where you can get together with colleagues to share anecdotes, ask questions, and learn new things to help you be a better interpreter. I was with some fellow interpreters recently talking about sayings in English and how best to translate them. The one about having a cake and eating it came up. As native Spanish speakers, we could not figure out why you could not have a cake and eat it too. Why would taking a bite out of your cake prevent you from having a cake? Then, of course, we looked up the meaning of that saying, and it turned out that the “eating” did not refer to a single bite but to eating the entire cake; hence, were you to eat the cake, it would be gone, and you would no longer have a cake. As we pondered on possible Spanish-language equivalents, it became clear that what the saying meant was that you could not engage in two incompatible activities, such as “dar Misa y repicar campanas” [be in the chapel and the bell tower at the same time.] It was also about not being able to engage in things that were mutually exclusive.

That got me thinking about interpreters who are independent contractors and yet want to form unions. It stands to reason that those would be incompatible activities. Independent contractors, by definition, are their own bosses. They own their own businesses, pay their own taxes, make their own decisions about whom to work for, whom not to work for, when to work and when not to work. They keep their own financial records as business owners and can even subcontract other interpreters as needed. Independent contractors decide how much to charge for their services and under which conditions to provide those services.

Unions are usually defined as bargaining units of employees who have a common employer with whom they can engage in negotiations for certain working conditions and employment benefits. The concept of labor unions dates back to the Industrial Revolution and the need to protect workers from abuses by industrialist capitalists. Unions were an avenue to rebalance the power disparity between labor and management and to this date continue to play that role. However, independent contract interpreters are not someone else’s employees. As business owners, everyone who receives the services of an independent contract interpreter is a client, not an employer. You negotiate your contract for services directly with your client: how much you want to charge, your minimum fee, your cancellation policy, and so forth. That is a one-to-one business relationship. I can’t imagine interpreters joining a union to negotiate working conditions with a law firm wanting to hire their services, so why the courts?

What make the courts different from other clients? Many independent contractors happen to work almost exclusively for a single court unit. Going to the same place to provide professional services day in and day out may feel like a regular job… but it is not! You can say “no” at any time and never go back, or you can take a few days to cover an assignment elsewhere, or you can just go on vacation. What about benefits? Well, that’s included in the whole concept of “having your own business”: you have to budget for things like health insurance, emergency savings, retirement and, yes, vacations. While it is true that there are fewer full-time positions for interpreters than there are “employable” interpreters, by choosing this profession you must have factored in the very high probability that you will have to work as an independent contractor. On the other hand, many independent contractors relish their freedom and would never dream of being tied down to a job in which they need to ask permission if they want to do something other than go to work on any given day.

I fail to grasp the compatibility of being an independent professional and joining a union. If you become part of a bargaining labor unit that has the courts as your “management” unit, doesn’t that automatically—or at least implicitly—mean that you are no longer your own boss? Doesn’t that mean you are no longer “independent”?

Now here’s the other thing that is different about the courts. Contracting with the courts—which are part of the public sector—is not the same as contracting with the private sector. In the latter, you set your own contractual terms and the client can take them or leave them. If they accept your terms, you provide your services. If they don’t, you don’t either. Simple. With a government entity, they are the ones who set the contractual terms and you can either take them or leave them. Why? Basically because they are managing public funds and have both lawmakers and taxpayers to answer to. Government contracts are strictly regulated, and public spending is closely monitored. Interpreting services for the judiciary fall under the “public spending” category. That does not mean we have to agree to work for peanuts. What it does mean is that we have to know how to navigate the system and go to the source of the budgeting problem: the lawmakers.

The authority to provide proper compensation and other operational conditions for expert service providers like interpreters comes from the top, not from local courts. The power rests with the high-ranking judicial officers who set policy and the lawmakers who control the purse strings. Forming unions is not going to move the needle at that level. If anything, it would reinforce the image of interpreters as low-in-the-totem-pole workers. So perhaps forming unions is just barking up the wrong tree. Perhaps independent contractors should be organizing in a different way that can get the eyes and ears of the real decision-makers.

In any event, I just don’t think you can be your own boss as an independent contractor and also have someone else be your boss if you are part of a union’s bargaining unit. You just can’t have your cake and eat it too.


Janis Palma has been a federally certified English<>Spanish judiciary interpreter since 1981. Her experience includes conference work in the private sector and seminar interpreting for the U.S. State Department. She has been a consultant for various higher education institutions, professional associations, and government agencies on judiciary interpreting and translating issues. She worked as an independent contractor for over twenty years in federal, state, and immigration courts around the U.S. before taking a full-time job. Janis joined the U.S. District Courts in Puerto Rico as a staff interpreter in April 2002 and retired in 2017. She now lives in San Antonio, Texas, embracing the joys of being a grandmother. She also enjoys volunteering for her professional associations, has been on the SSTI and TAJIT Boards, and is currently the past Chair of the NAJIT Board of Directors. Contact: palmajanis88@gmail.com

Main photo (cropped) from “A abrir camino me llamas” at pastoralsj, under the CC BY-NC-SA 4.0 license. First body photo taken from the page “RELACIONES LABORALES” at MR CONSULTING, under the CC BY-NC-SA 4.0 CA license. Second body photo taken from “Caminar como técnica para pensar, 3” by Carlos Osorio at Caminando por Madrid, under the CC BY-NC 3.0 ES license.

14 thoughts on “You can’t have your cake and eat it, too”

  1. Jaye Stovee says:

    You are correct, and have laid this out clearly.

  2. Alex Morales-Gonzalez says:

    Very insightful. Thanks

  3. Milena Calderari-Waldron says:

    Court interpreters are unionized under CWA in California and AFSCME in New York. Healthcare interpreters are unionized under AFSCME in Oregon and Washington State. There must be some good reason for thousands of independent contractor interpreters who render services paid with public funds to choose to unionize. When the state sets the payment and working conditions through its own internal policies without much room for individual negotiation, then collective bargaining is an appealing alternative.

    1. JANIS PALMA says:

      Hi Milena. I don’t deny that unions can negotiate job benefits. My argument is that if you are an independent business owner (which is what independent contractor are) the courts are not your employer, they are your clients. For those who want to be employees (or treated as employees) and wish to go the CWA or AFSCME route, that’s a very personal decision and I’m not saying it’s right or wrong. However, I think we can agree that if you are an “employee” (in union terms, you are “labor” and the courts are “management”) you cannot also be an “independent” contractor (meaning, you manage yourself, your work, and everything related to your professional practice.) It’s one thing or the other. Just from the IRS and the Department of Labor’s definitions of one and the other, it is clear that you can’t be both. On October 11, 2022, “the U.S. Department of Labor (DOL) […] issued a new proposed rule addressing the distinction between employees and independent contractors under the Fair Labor Standards Act (FLSA).” For more information on this proposed rule, see: https://www.hklaw.com/en/insights/publications/2022/10/us-labor-department-issues-proposed-rule-on-independent-contractors#:~:text=The%20FLSA%20provides%20various%20benefits,issue%20for%20roughly%2080%20years.

  4. Montserrat ZUCKERMAN says:

    Dear Janis,

    Thank you for raising this issue and for the following: “The power rests with the high-ranking judicial officers who set policy and the lawmakers who control the purse strings… Perhaps independent contractors should be organizing in a different way that can get the eyes and ears of the real decision-makers.”

    This is what per diem court interpreters are currently trying to do in Massachusetts. In our state, compensation rates have not changed since 2006 and compensation for travel time is virtually nonexistent. I believe independent contractors working for the courts in other states face much the same issues. Would like to hear about what others have been able to accomplish in this regard. Feel free to contact me directly.

    1. JANIS PALMA says:

      Hi Montserrat! You need to research whether your contract is subject to some law or regulation that is specific to interpreters, or whether the conditions are applicable to all court system contractors (for example, travel expenses.) You also need to look into what type of funding allocation your state legislature made for the judiciary branch in the last funding cycle (if your fiscal year runs like the federal government, it goes from October 1 to September 30, so this would be FY 2022-23), and what part of that allocation is earmarked for language services (if there is any.) This will give you the initial background information to know what you can ask for. You should also find out who is the decision-maker within the judiciary. Do you have a unified court system? Or is each court independent? Budget-wise 9and decision-wise), that is very important. Please email me and we can exchange more information: janis.palma@gmail.com. My best wishes for success!

  5. Judith Kenigson says:

    On the other hand… While interpreters in federal courts don’t have a “union”, it was only the intervention of a group of federal interpreters who, disgusted after so many years of stagnant fees, researched the situation, found that staff interpreters HAD received raises over the years, and wrote to the “powers that be” in the court system to finally get independent contractors a raise after so many years of receiving the same outdated, paltry fees. They had to do what a union would do, since we don’t have one.
    Lesson learned? Silence isn’t an option.

    1. JANIS PALMA says:

      The fact of the matter is that this “intervention of a group of federal interpreters” came about after Javier Soler announced during the 2022 NAJIT conference that the AO was considering an increase in the rate schedule for independent contractors. The proposed increase he mentioned was the catalytic event that set off the subsequent campaign to have an increase that reflected current market rates and took inflationary cost-of-living percentages into account as well. In other words, the number he mentioned was deemed unacceptable, and federally certified interpreters were all of one mind in that repect. Hene, the “intervention.” You may have noticed that there were many other issues mentioned that still cause great insatisfaction, but that needle has not moved at all because there are other factors to consider, such as federal contracts for interpreters having to comply with other regulations applicable across the board for all judiciary contractors. I agree that silence is never an option, but you also have to know what rules and regulations are involved when dealing with government agencies, and how to navigate those to get the results you want.

  6. Christina L. Verduin says:

    I believe that most NJ interpreters are part of a union – part of the larger communication workers (or some similar name). So I don’t understand exactly how this works, if it does,
    but someone part of that union in NJ might be able to inform how that would work. By what I can see (I have been working in NJ for 25 years as an independent contractor), it doesn’t seem to have provided much help – I can’t remember how long it has been since we have had a raise or increase in any other benefits.

    1. JANIS PALMA says:

      Hi Christina. Please see Robert Joe’s comments below yours since you mention New Jersey. Thank you for your comments.

  7. Well done as usual, Janis. Let me offer one slight clarification. You wrote, “The power rests with the high-ranking judicial officers who set policy and the lawmakers who control the purse strings.” That’s definitely the case in some jurisdictions where legislatures and governors approve judiciary budgets line by line, meaning the budget for court interpretation may be requested by the judiciary but the amount actually funded depends on actions by the executive and legislative branches. However, there are many other jurisdictions where the executive and legislative branches certainly approve budget requests from the judiciary, but approve a lump sum and do not get involved in line-by-line analyses. This is the case, for example, in New Jersey. The actual amount allocated to funding court interpreting (and, implicitly salaries of staff and compensation for private contractors) is decided by officials of the Administrative Office of the Courts. The other branches approve a lump sum and it’s left to the Judicial Branch to apportion funding among all the competing interests under the control of the Supreme Court (separation of powers in work here). So the framework for how budgetary decisions get made varies from jurisdiction to jurisdiction. Hope this subtle clarification helps!

    1. JANIS PALMA says:

      Thank you, Robert Joe. I very much appreciate all the information you shared and I am glad you clarified what I wrote because I did not mean to separate “the high-ranking judicial officers who set policy” from “the lawmakers who control the purse strings.” I do understand it is a symbiotic relationship of sorts and that it is going to be different in every state. The point I was trying to make was that individual courts may not be the right place to go asking for a fee increase. It’s important for interpreters to find out who really makes those budgetary decisions and talk to THEM, not to staff membes that ultimately have no decision-making power.

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