There was a Reuters article on this that was stupidly political, so I’m going to use an HR website.
This was an issue that the National Court Reporters Association urged people to submit feedback against. As some will remember, I disagreed with the organization, because it was wrong on this one. Maybe that should give everyone pause because I’m a 33-year-old man who reads the law for fun and they’re a national association that I thought had people with legal training on the payroll. But, hey, it’s cool.
It boils down to the idea that employers cannot contract out their labor force. The government failed to enforce the law in any meaningful fashion for a long, long time, and industries like ours suffered because of that.
You’re either going to read about this or you’re not. I encourage you to. It impacts a good 70% of us and gives incredible weight to the plan I unveiled to unionize deposition reporters in New York City.
Hey, Big Box, how do you plan to get out of bullet five if court reporters ever start exercising their rights?
Bullet points on what the Department of Labor will look at with regard to whether a worker is a misclassified employee or independent contractor.
Sometime at the end of last year, a Stenonymous source leaked Lexitas’s independent contractor agreement to me.
This kind of thing wasn’t a thing historically. Even when NYC passed that law where independent contractors needed a contract, a lot of “freelancers” didn’t get one.
You know what’s changed in the last 13 years? A popular court reporting blog popped up and started talking about employee misclassification and unionization. Safe bet that these people are paying attention and they’re afraid. Their misclassification of you is a massive liability. Let’s just say the workers comp insurers would have a field day if people were more assertive in exercising their rights.
First of all, let’s just say that in the event of a misclassification claim, hopefully a fact finder would consider who writes the contract. The more powerful entity, by far, is Lexitas. You want work? You’re gonna work on their terms. Of course you’re gonna sign the contract. They even go out of their way to say they’re not forming an agency relationship with the independent contractor. So court reporting agencies don’t want to call themselves agencies when it means you might be a misclassifiedemployee.
The second laughable thing is that this contract has no consideration. There’s no point in signing it. They’re not promising you a damn thing. It says, in brief:
1. You’re an independent contractor.
2. You pay your own taxes.
3. You don’t solicit their clients, employees, or other independent contractors.
4. You use their formatting and submission portal. A/K/A they have direction and control over you for submission and completion of work. Just so we’re clear, independent contractors are supposed to be free of direction and control.
5. You’ll give them all your work products and notes when you’re done “independent contractoring” for them.
6. You’ll pay for all damages and attorney fees if you breach the agreement.
“We have no relationship, you’re independent from us, but you do everything in the way we like it and pay us if you don’t.”
Lexitas, fuck you (as an entity. Conceded many of your employees are going to be good people.) I hope every single “independent contractor” you had sign this sham goes right to a lawyer, claims misclassification, and gets their self-employment taxes back right out of your wallet and your workers comp insurance skyrockets because they realize you’ve misclassified a whole segment of your workforce. And I hope that when your dipshit lawyer brings this agreement into court, the misclassified employee’s lawyer brings my blog post into court and says “look, judge, even this idiot with the blog knows this is a scam meant to cover the ass of the agency while giving nothing to my client.” While I’m at it, let me put it out there that when another agency was challenged on this, they settled rather than get their ass kicked in court.
Alice Halbert’s class action settlement notice in a matter involving Atkinson-Baker
I may be on the losing side because my fellow court reporters can’t be bothered to protect their own interests in any substantial way, but hey, I tried. And lucky for me, if you keep doing what corporations do, squeezing and squeezing, eventually, they might try too, because the “pain” of trying something new will pale in comparison to the pain of all the revenue they’re generating for you being sucked away from them and their families by mankind’s greatest wealth-extraction device, the corporation.
For the record, I’m not opposed to making money. I’m as capitalist as they come and hoping that someday my writing is recognized, ahem, monetarily. I’m opposed to making money at the expense of all else. This isn’t limited to private sector. I’m opposed to the habitual collars for dollars crowd too.
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.
