Interpreters and competition law

Trustbusters Busted: Freelance Interpreters Affirm Working Conditions/Bargaining Rights

By Luigi Luccarelli

Note: This article originally appeared in The Guild Reporter, a publication of The Newspaper Guild – Communication Workers of America, in 1996. The Translators and Interpreters Guild, an affiliate of the CWA, submitted an amicus brief to the FTC in support of AIIC’s defense of standards and working condition.

In a case before the Federal Trade Commission, the International Association of Conference Interpreters (known as AIIC, its French acronym) has successfully defended its right to establish working conditions as a requirement for membership and to enter into agreements with users of interpretation services regarding the wages and working conditions of freelance interpreters.

Over the years the FTC has regularly examined the practices of professional associations and has shown a tendency to broaden the scope of activities over which it claims control. The legal system itself is a deterrent to groups fighting back. Any case must first be heard by an Administrative Law Judge (ALJ), an FTC employee him/herself, then appealed to the Commissioners before having a chance to be heard by a non-FTC court. The process is lengthy and costly, and the result is that most organizations choose to sign a consent order that, while allowing them to say they are not guilty, forces them to cease and desist from the practices the FTC staff believes are objectionable.

AIIC, a European based association with members in some 70 countries (140 in the US)*, had been charged with price fixing, a heading under which the FTC staff lawyers lumped numerous activities, including rules governing working conditions and some provisions of the association’s code of ethics. The allegations grew out of a broad investigation of translator/interpreter associations undertaken by the FTC Bureau of Competition in the early 1990s. Two other associations facing similar charges had previously entered into consent orders, which in addition to precluding any kind of fee schedules for freelance interpreters, prohibited the associations from establishing provisions regarding the length of working day, team size, and equipment used, conditions that have a direct impact on the health of interpreters and the quality of their work.

AIIC was not willing to accept such a sweeping prohibition. It repeatedly expressed a willingness to sign a consent order limited to monetary conditions strictly defined, although it denied violating US law and had eliminated all fee provisions in the US long ago and for the whole world in 1992. The FTC staff, however, proved intractable, insisting on prohibiting establishment of working conditions as well. The association stuck to principle and the two parties began an administrative/civil proceeding before a FTC Administrative Law Judge (ALJ) in 1995.

The FTC lawyers tried to claim that the working conditions in question constituted a
restriction on output and should be banned without further examination. AIIC countered with common sense. It argued that establishing normal working hours and team size does not restrict output however measured, and even increases real productivity over a person’s working life. Such basic conditions protect the health of the interpreter, are a guarantee of quality for all clients, and help provide potential users with valuable information. Moreover, in and of themselves, they do not affect price.

The Translators and Interpreters Guild filed an amicus brief in support of AIIC’s position. Also known as a friend of the court brief, an amicus can be filed by a non-party with a strong interest in supporting an action, generally with the public interest in mind. The Presidents of The Translators and Interpreters Guild, The Newspaper Guild and the Communications Workers of America also sent letters of support and solidarity to AIIC’s Assembly, which met this past January.

In August 1996 the ALJ handed down an initial decision that sided with the FTC staff on nearly all points. The case was then examined on appeal by the Commissioners of the FTC. While the Commission still entered an Order against AIIC prohibiting it from mandating the monetary conditions of freelance members (even though it does not do so), it reversed the ALJ’s decision on the other issues. By a 5-0 vote, the Commissioners declared that FTC staff failed to prove that competition was in any way limited by the provisions on length of day, team size, equipment, not performing non-interpretation duties when on assignment, and advertising, among others. While that in itself was sufficient to reverse the ruling of the ALJ, the Commissioners also recognized the legitimacy of AIIC’s justifications regarding health and quality.

They also confirmed AIIC’s right to negotiate agreements with users who employ freelance interpreters. AIIC currently has such formal agreements with several international organizations including the United Nations, European Union and a number of International Trade Secretariats. The FTC staff did not directly challenge the agreements with intergovernmental organizations, but did have some doubts about agreements with what they consider to be private sector organizations such as the trade secretariats. The decision of the Commission was very clear. The Order states that AIIC and its members may continue “Performing pursuant to any existing agreement,” and “may negotiate new agreements, upon the request of the user, with any Intergovernmental Organizations or other such user, concerning the wages, hours, and working conditions of freelance interpreters”.

The decision is an important step forward in protecting the legitimate rights of freelance workers. When we come together in an association to collectively establish the basic working conditions we need to best perform our work, or when we enter into an agreement with a user of our services for mutual benefit, the interests of all are served. The mechanistic version of output that the FTC staff put forward in this case (and which was ultimately rejected) cannot be used to measure what interpreters do – communicate across cultures. We fought against such injustice, and we were fortunate to have a friend in the TNG to support us along the way. We hope you will join us in celebrating this victory.


*  Today AIIC has members in over 100 countries (195 in the US).


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