Shortage Solutions 13: Unionization

One factor I’ve identified as a reason for stenographer shortage is terrible compensation. While it may be difficult for some court reporters to learn, there are people in this field working decades behind inflation. There are reporters that haven’t had a raise for the better part of a decade or more. When it comes to reporter treatment, there’s a spectrum of treatment as wide as the reporter spectrum of skill, and the two don’t necessarily correlate.

Unionization is an interesting topic because many of us consider ourselves independent contractors. There are lots of resources out there for understanding employee misclassification and common law employees versus independent contractors. The IRS even lists public stenographers under independent contractors because we’ve become so ubiquitously associated with independent contracting. Generally, independent contractors cannot form a union, and recent federal rule changes have made that clear. In New York, we had the Federation of Shorthand for deposition reporters, but it no longer exists.

The question of whether someone is an employee or independent contractor is something of interest to many government agencies and courts, and something that is not always clear in the court reporting and captioning industry. What two parties call a relationship is mostly irrelevant for determining what that relationship is under the law. As an example of the kind of things that courts consider, let’s check out the Ninth Circuit:

Real v Driscoll Strawberry Assocs., Inc., 603 F.2d 748, 754, 9th Circuit, 1979. Independent Contractor Test

Using a test like this, one starts to see the different interpretations possible. Recent rule changes focus even more so on the right to control work of the “employer” and the profit or loss or the employee. Some may be incredulous, “we control our hours! We’re independent contractors!” But such a blanket answer does not and never will address the truth, that many agencies demand a specific layout, specific page rates, or bar reporters from sending others on jobs accepted by the reporter. There’s a lot of control that reporters give up for the “right to work,” and in some cases it arguably would make us employees if and when it were challenged in court. Companies have settled such claims in the past, probably to prevent precedent from taking hold and court reporters realizing that the “freedom” of “independent contracting” effectively silences discussions on worker pay and working conditions, conveniently placing the blame on the “entrepreneur,” who could be a 20 year old, newly graduated, with no comprehension of the business. How well can we expect them to do when instructors tell them how high the demand is for their skills and companies beat them down and deny that value in the name of the almighty dollar?

Captioners aren’t released from this discussion either. Some captioners work as employees, some work as independent contractors, and the distinctions aren’t always clear or consistent in the same company, let alone across multiple companies.

There’s no doubt in my mind that unionization can help more of us. I am a member of ASSCR, and prior to that I was a member of Local 1070. Prior to that, I was New York freelance. Nothing is ever perfect, but my job security and compensation rose tremendously when I gave up freelancing for officialship. If the two had been remotely close, I’d still be a deposition reporter. I loved it. Love doesn’t pay the bills.

The main jab that people give when discussing unionization is the right to refuse work. Reporters don’t want to give that up. But an employment contract drafted by a smart union for per diem or commission-based employees, which is essentially what many of us are, could simply include the right to refuse work. People could still be paid by page. There is not a single “right” granted by being independent contractors that could not be covered in an employment contract. A lot of the smaller gripes around unionization seem to be from thinking too deeply inside the box and assuming we’d have to conform to low hourly wages, which is simply a lie perpetuated by people afraid of the word “union.”

The main hurdle with regard to unionization, and what makes it unlikely in my view, is reporter organization and willpower. At least 30% of the reporters at a given company or location would have to come together, make the case that they were common law employees, and request a vote to join a union. Then they’d have to actually win the vote! A lot of people in the private sector don’t know who works for who. We don’t even have great data on the total number of court reporters that exist. How can we expect someone to unionize a location they never go to or confer with colleagues they never see? Even more confusing, some court reporters will easily meet the definition of independent contractor while others could be defined as employees. Some court reporters are simply afraid to discuss unionization because of potential retaliation.

Our realtimers might scoff at such a discussion, but if we think of court reporting as a pyramid where the realtimers sit on top, and we think of the exploited common law employee class of reporter as the bottom, it’s easy to see why realtimers need that bottom to be strong. How long will realtime rates remain high if the floor drops out from under you? The only “good” answer I’ve seen to this question is “well, I should be able to make it to retirement, so I don’t care.” My answer to that is “a society grows great when old men plant trees in whose shade they will never sit.” But even if a reader is a self-centered prick that doesn’t care about that, how much more money do you think realtimers will be able to ask for once the base pay is back where it should be? It’s in the self-centered prick’s interest to add fuel to this fire too.

I also believe our associations, the primary drivers for our defense currently, would never assist or support such endeavors. Unions are likely seen as a threat. Once a union exists, is an association necessary? But the very thing driving association membership into the ground is the inability of associations to directly influence rate discussions and their unwillingness to collect and distribute rate data. There’s even some chance association membership would rise, since people would likely have more to spend. If associations want to remain relevant, it may make sense to start looking out for reporters, and particularly the ones that are struggling, instead of milking the certification cow until it’s dead.

On the digital front, unionization could lead to negotiations where stenographers are given work preference by contract instead of the situation we have now, where the companies “promise” we’re number one and quietly do everything they can to push us out of the market.

I think the threat needs to be on the table for the larger companies. They will have no choice but to raise rates as unionization discussions spread. It’s working in other industries and will work in ours. In the short term, we could expect dirty tricks. In the long term, we could expect higher wages for all reporters, union and non-union. Feel free to like, comment, or share if that’s a future you want!

Addendum:

Shortly after the launch of this post, a reader sent me this TikTok. In brief, adjusting prices upward can attract a different quality of customer. So those that fearmonger pricing ourselves out of the market might be interested in viewing that.