Mistaken For The Court Reporter

For years, female attorneys and women in the legal field have written articles about or related to how they are mistaken for the court reporter or how they are not assumed to be a judge or lawyer. It happened in 2011. Happened again in 2017, though that article was apparently deleted. The topic hit Forbes in 2018, notably dropping the bit about being mistaken as a court reporter, and rather as court personnel. Then, again, in February 2019, being mistaken for the court reporter became an issue used to describe the blatant and ongoing sexism and illegal discrimination faced by women in law.

This raises plenty of good points on equality and illegal discrimination that women are likely facing in law and employment generally. I’ve previously opined that as independent contractors we all, including women, face fewer protections and greater barriers than employees. Indeed, there are hurdles we have to face in educating people about rates, and business, and getting everyone into a position where they can negotiate for the most amount of money every time. Where do we start?

That brings me to a really nice article and statement by Sharon Velazco. She very diplomatically writes out the importance of a reporter. She explains the talent and dedication needed to build the skills necessary to be a reporter. She sums it all up with something I could not have said better: Who wouldn’t want to be a court reporter? All too often we find ourselves falling into vitriolic attacks against people we disagree with. I find it hurts our cause more than helps. If we could all follow such perfect examples and take the time out to politely educate or inform people when they are wrong, it will make us stronger. It will correct the record. We will make it clear that this is a field that deserves the respect of the people it serves by example.

And by the looks of it, the women in the legal field will want us to be at the top of our game now more than ever. They will be at the forefront of calling out illegal discrimination and setting employment trends that protect employees, and the accuracy of the records we make may very well be a part of that. So thank you to every one of you that works on informing news reporters and legal professionals. You continue to bring ideas to the table and remind us of our own importance to those we serve and the legal process itself.

Workers Rights

Here on Stenonymous we have explored many different things related to freelancing and stenographic employment. As a quick recap for those that have trouble navigating the site, we’ve discussed turnaround times and how they have gone from 30 days to 5 with no extra money involved. We’ve discussed the Beginner’s Trap and freelance loyalty, which is all about how you must be loyal to yourself to earn a better income. We’ve brought out the need to build skills that make you marketable. We have admitted the power of a contract and thought about what should go into a rate sheet. We’ve gotten into billing, antic o ntracting, form SS8, and what it means to be an independent contractor. We have explained why we can’t discuss rates, and then we have discussed rates. We even put out other people’s rates.

Now it’s time for something a little different. I would like people to seriously consider a dilemma the field finds itself in. As independent contractors, we are consistently in a bind of being afraid to discuss rates thanks to antitrust concerns. This fear is probably at times a little overblown, but it causes us to be silent and to act very content even when things are not going well. Indeed, our biggest organizations, our NCRAs and NYSCRAs are trapped in the position of being unable to serve as forums for rate discussions due to liability concerns. All this is happening while some of our biggest purchasers are making a push from stenographic reporting to digital recording. I think it is time to ask ourselves what we actually get out of the independent contractor label. It’s out there that employers can save up to 30 percent by labeling employees as independent contractors. It’s out there that about 20 percent of employees are misclassified. Succinctly, the gig economy is bad for workers. Employers are doing their best to eliminate the cost of workers compensation and unemployment. These are serious benefits, worth thousands of dollars, that independent contractors do not get. Independent contractors have little to no federal protection from otherwise illegal discrimination and need to go to small claims instead of Department of Labor if we go unpaid. Employees are also entitled to FMLA leave, and in New York, family leave laws. Employees have the right to unionize and the employer is forced to enter good-faith negotiation with the employee union. Under today’s law in New York, the only way to take any of these benefits, if you are a commission employee misclassified as an independent contractor, is to dispute the issue on a case-by-case basis. How many people have the guts to do that?

We’re not even getting the benefits of being independent contractors, which would be the write-offs, the ability to hire other workers, and the ability to set our own hours. Think about it. How many of us in the freelance sector print our own transcripts or have consistent business write-offs? Yes, it is nice to write-off the occasional mailing fee, but the agencies have largely taken up any function that gets a write-off except for your starting equipment fee. Ironically, I have more write-offs as an employee with the state, thanks to my 1099 income, than I ever did as a freelancer. The ability to hire other workers? Go ahead and try sending someone who isn’t you to a deposition. See how many times you can do that before they stop sending you work. When I call my plumber, I don’t get to choose who he or she sends. Setting your own hours? Don’t know about everyone else, but I know that I got deposition forms that said please arrive early and gave me a start time. My hours were more or less set by the work, which really isn’t that much different from your boss telling you I need you at 10 tomorrow. We live in America, and people are entitled to refuse work any day they feel like, it’s not something we need the mantle of independent contractor for.

From New York to California independent contractors are beginning to challenge their status or realize the raw deal. California came out with a simplified three-part test for independent contractors. Maybe we should have a serious discussion about whether the title is worth keeping for most of us. Maybe we should talk about new laws and enforcement for independent contractors in New York.

It’s absolutely ludicrous to me that we box ourselves into a position where “freelancers” who are meted work, have deadlines dictated to them, are told when to arrive, what to bring, and disciplined via withholding work when deadlines are slipped, defend this model. The numbers don’t lie. Turnaround times are six times faster. Rates haven’t risen with inflation. Independent contractors save employers 30 percent. What could you do with a 30 percent raise? Hell, what could you do with a 10 percent raise? I mean, I have to go back to the article where I calculated out 1000 different rates. If you’re the breadwinner, unless you’re making at least $5.50 a page average, you’re working nights and weekends to make ends meet. The pricing structure doesn’t even need to change. The only thing that would have to change is agencies would have to pay minimum wage if your page rate didn’t give you at least minimum wage. Guess what? That’ll basically never happen. Imagine a world where you go take a deposition for an hour and only make 20 pages. Now imagine you transcribe for one hour. Your page rate is $3.25. $65 for two hours. Not a great rate but realistically what my generation was lowballed with. Way above minimum wage. We’re specialized workers, we deserve it.

Ultimately, I am of the opinion that in this market and under these circumstances the losers are the independent contractors. There are no substantial gains to being independent contractors, and anyone with private clients could just continue their private clients as a separate business entity. My opinion is malleable and I’m open to debate, but beyond the shallow arguments of we have always been independent contractors and we buy our own equipment, I’ve heard precious little that impresses me. You know who else buys their own equipment? Teachers.

Maybe it’s time for a swap. Maybe it’s time for our trade organizations to shift to labor unions. At the very least, it’s time to talk about these issues in public and consider what can be better.

EDIT. On February 11, 2019, I discovered this JCR article which appears to have a different viewpoint than my own but also talks about the issue. I feel it is important, when possible, to give as much information as possible, so please feel free to review that and join the discussion.

Direction and Control

Quickly I’ll just address that I may be coming out of a previously-mentioned hiatus much earlier than anticipated. I guess I love writing and stenography too much to stop.

That aside, followers of the blog will recall we have written about Independent Contractors versus Employees in the past. We discovered form SS8, where a worker may ask the IRS to help determine whether they should be classified independent contractor or employee. We have even discussed the power of a contract. What have we missed?A real-world example for the students among us! So today we explore a quick fact of life. When you go into freelancing, you will often get little pushes or orders from agencies. For a lot of you, nothing seems wrong about this kind of a thing, they’re hiring me so I do what they say. But here is the problem: Chances are you are an independent contractor. You are freelance. That means you are responsible. It is generally not an acceptable excuse to say “but my agency said so.” The example above is not so bad. Basically the company is saying “be professional, dammit.” But here is the thing: When you are an independent contractor the “employer” or hiring entity is not supposed to have direction or control. They cannot technically micromanage when you appear or what you say. Best advice: When they give these rules, if they’re not ultra imposing, smile, nod, and do what you normally would anyway. It’s often not worth it to get into a big argument with an agency over direction and control because then they may withhold work. Truly, “winning” is not everything.

Now the hard part. Always remember we have a choice. Occasionally the agency demands that we change something in a transcript or even alter colloquy, and you have to weigh that agency’s request with your reputation and liability. If it’s a simple style change, many of us have acquiesced because it just doesn’t make sense to go to war over. But if an agency wants us to give them a layout that cuts our pages in half or edit something out of the record that a lawyer said, we really have to consider the morals of that, and beyond the morals, that we may be liable if anyone makes a claim against us.

In summary, if you are an independent contractor:

They (hiring entities) cannot control or micromanage you, but they will try.
They can withhold work for pretty much any reason. You have arguably fewer legal rights than an at-will employee. Getting into a squabble over something inconsequential can damage you more than “losing” an argument. On the flip side, if they’re trying to pressure you into committing to a low rate or something that could harm you or your wallet, you have the right to refuse or negotiate.
You are considered an equal on the level of the agency. “My agency told me to do it” may not fly if a claim is made against you.
You need to be aware of antitrust law and not violate it. In brief, colluding to fix rates can cause you trouble. Examples: Don’t work for XYZ Company for less than 5.00 or we should all charge a dollar on copies. These are or can be illegal agreements to fix prices essentially. Informing ourselves and others on general business principles like inflation is probably okay.
Dependent on the laws of your jurisdiction you may be entitled to a written contract with the hiring agency, but don’t be too surprised if they don’t provide one. See 2. Choose your battles.
If you are being treated as an employee and you suffer a work injury, you may be able to make a legal claim for workers comp.