The ATA Chronicle - May/June 2024 - 31

the ABC test states that an
independent contractor
must perform work that is
outside the main focus of the
contracting entity's business.
Freelance translators and
interpreters working for
language services providers
could not pass this prong of
the test, and many suffered
severe business losses as
a result. To protect these
freelance linguists, the
Coalition of Practicing
Interpreters and Translators,
ATA, and other partners
advocated for-and helped
pass-legislation exempting
some linguists from the ABC
test in California.
This new final rule
under the FLSA specifically
rejects the ABC test at the
federal level. According to
the Department of Labor,
as stated on its Frequently
Asked Questions page:
" Under the final rule, the
Department will instead
rely on the long-standing
multifactor 'economic
reality' test used by courts
to determine whether a
worker is an employee or
independent contractor. This
test relies on the totality of
the circumstances where no
one factor is determinative. "
The six factors listed
in the final rule are
meant to provide a more
comprehensive definition
of an individual's business
than the ABC test. However,
the Department of Labor
also points out that this final
rule doesn't invalidate or
otherwise affect other laws.
The final rule only revises
the Department of Labor's
interpretation under the
FLSA. It has no effect on
other laws-federal, state,
www.ata-chronicle.online
or local-that use different
standards for employee
classification. For example,
the Internal Revenue Code
and the National Labor
Relations Act have different
statutory language and
judicial precedent governing
the distinction between
employees and independent
contractors, and those laws
are interpreted and enforced
by different federal agencies.
Similarly, this rule has no
effect on those state wageand-hour
laws that use an
" ABC " test, such as California
or New Jersey. The FLSA
doesn't preempt any other
laws that protect workers,
so businesses must comply
with all federal, state, and
local laws that apply and
ensure that they are meeting
whichever standard provides
workers with the greatest
protection. See 29 U.S.C. 218.
In other words, although
this final rule under the
FLSA provides a different
framework for determining
whether a given worker is an
employee or an independent
contractor, it doesn't
automatically exempt
linguists from ABC tests or
other legislation passed,
either at the federal level or in
the states where the linguist
lives or works. The more
prepared you are to prove your
status as either an employee
or contractor, the easier it will
be for you to protect yourself
from any problems arising
from misclassification.
I'm a Translator
or Interpreter.
What Should I Do?
Please take some time to read
the Department of Labor's
American Translators Association 31
The more prepared you are to
prove your status as either an
employee or contractor, the
easier it will be for you to protect
yourself from any problems arising
from misclassification.
announcement of the final
rule and frequently asked
questions. You can also find
an interpretation of the rule
by clicking here. Note that
this article and the references
it links to should not be
construed as legal advice, and
you should always consult a
qualified professional if you
have questions about your
specific situation.
We also encourage you to
read " Understanding Worker
Classification: The ABC Test,
Misclassification, and Tips
for Professionalizing Your
Language Services Business, "
a post by ATA member
Jason Knapp on the basics
of professionalizing your
T&I business and steps you
can take to meet the criteria
provided for in the test and
prove your independent
contractor status.
Finally, discuss this new
rule with your colleagues
and clients as appropriate,
especially those who might
not know about it yet. Your
efforts to inform and
educate them will benefit
everyone.
Ben Karl, CT is an ATA-certified French>English translator
and copywriter specializing in corporate communications,
marketing, and UX. He is an ATA director, serves as chair
of ATA's Advocacy Committee, and is a member of the
Membership Development Committee and The ATA Chronicle
Editorial Advisory Board. He is also chair of the International
Federation of Translators' (FIT) Translatio Standing Committee
and edits À Propos, the blog of ATA's French Language
Division. ben@bktranslation.com
Danielle Maxson, CT has been translating since 2009
and specializes in medical translation with a focus on
patient records. She is an ATA-certified Portuguese>English
and Spanish>English translator and chair of ATA's Business
Practices Education Committee. Before focusing on translation,
she worked as a Spanish teacher and medical interpreter.
dmaxson@dmaxsontranslates.com

https://www.dol.gov/agencies/whd/flsa/misclassification/rulemaking https://www.atanet.org/business-strategies/understanding-worker-classification-the-abc-test-misclassification-and-tips-for-professionalizing-your-language-services-business/ https://www.dol.gov/agencies/whd/flsa/misclassification/rulemaking/faqs https://coalitionptic.org/ https://www.dol.gov/agencies/whd/flsa/misclassification/rulemaking/faqs https://coalitionptic.org/ https://www.nixonpeabody.com/insights/alerts/2024/01/16/dol-narrows-definition-of-independent-contractor https://www.atanet.org/business-strategies/understanding-worker-classification-the-abc-test-misclassification-and-tips-for-professionalizing-your-language-services-business/ https://www.atanet.org/business-strategies/understanding-worker-classification-the-abc-test-misclassification-and-tips-for-professionalizing-your-language-services-business/ https://www.atanet.org/business-strategies/understanding-worker-classification-the-abc-test-misclassification-and-tips-for-professionalizing-your-language-services-business/ https://www.atanet.org/business-strategies/understanding-worker-classification-the-abc-test-misclassification-and-tips-for-professionalizing-your-language-services-business/ https://www.dol.gov/agencies/whd/flsa/misclassification/rulemaking/faqs#g6 http://www.ata-chronicle.online

The ATA Chronicle - May/June 2024

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