Misclassification of Workers Puts Courts, Due Process in Jeopardy for Limited English Speakers Here Legally

05/16/2010 05:12 am ET | Updated May 25, 2011

The federal Civil Rights Act requires state courts that receive federal funds (virtually all of them) to provide properly-credentialed interpreters in all civil and criminal cases of limited English proficient (LEP) individuals here legally in the United States. The constitutional guarantees of access to the courts, due process, equal protection and the right to counsel also require that interpreters be provided.

By law, interpreters must be provided without charge. Yet, across the nation, courts are shirking their responsibilities according to a recent study by NYU School of Law that found 46 percent fail to require interpreters be provided in all civil cases; 80 percent fail to guarantee the courts pay for the interpreters (with the result that many people who need them do not receive them); and 37 percent fail to require the use of credentialed interpreters, even when they're available.

It gets worse. Many of the interpreters who are provided have been misclassified as independent contractors by the companies that hire them out to courts, law enforcement agencies, even hospitals - all critical life-saving functions in society. Misclassification costs states big money in lost tax revenue and can endanger the public.

Unlike contractors who, by law, cannot be properly trained and supervised by the company that hires them, interpreters who are employees are trained, tested and certified out of obvious necessity. It's difficult enough to explain to a judge what happened or to a doctor what hurts when you do speak English, let alone when you're trying to communicate through an interpreter who may or may not have the necessary training and skills to accurately assist you.

Simply stated, companies are not legally permitted to control the daily activities of contractors and assure quality control or customer satisfaction. If they do, the contractors must be classified as employees - not contractors. Contractors aren't subject to any guidelines, rules or policies an employee would be required to follow, not even to protect sensitive company or client information.

A 2007 study by the U.S. General Accounting Office estimated that 15 percent of all employers misclassify 3.4 million workers as independent contractors each year. That cost the government $2.7 billion in Social Security, unemployment and income tax revenues. The Internal Revenue Service has signed information-sharing agreements with the state labor and workforce agencies in more than half the states as part of a crackdown on worker misclassification. Illustrating how virtually any industry is vulnerable, and that the penalties can be severe, FedEx was fined $319 million by the IRS for its illegal independent contractor model in 2007.

There also are penalties for avoiding worker's compensation, unemployment insurance, training taxes and disability insurance. In California, the Employment Development Department (EDD) can levy a penalty equal to 10 percent of the amount owed for unemployment and disability insurance.

Minimum wage and overtime violations for misclassified workers can be even costlier and exceed $10,000 per incident in New York for repeat offenders and up to one year in jail in California. Additional penalties for organizations doing business with companies that misclassify workers put a number of key public service entities at even more risk.

In the case of the courts, knowing the native language of the person you're interpreting for is not sufficient. An interpreter must have the proper training to understand the nuances of the court systems, protect our constitutional guarantees and assure due process - training only available to employees.