Copyright and Stenography

I created a masterpiece about a week ago. On the left, a very horrifying creature that took about three minutes to create and was instantly copyrighted upon creation. If you took my creation and slapped it on a mug and started selling it, I could probably successfully sue you. On the right, a file snapshot of years worth of transcript work, which could be freely copied by anyone any time, at least ostensibly, as any court that decides this issue seems to decide that transcripts are not expressive work protected under copyright. Sam Glover also wrote about this years ago, but seems to have purged it from his blog. Some courts, like the one in Urban Pacific Equities et al v The Superior Court of Los Angeles County (59 Cal. App. 4th 688, 69 Cal. Rptr. 2d 635), have taken the step of ruling that the transcript does not have to be turned over under a business record subpoena because it is a product of business and not a business record, but this does not necessarily prevent it from being copied if counsel obtains it another way.

Here in New York, we do have guaranteed payment of an original via our General Business Law 399-cc (Transcripts and stenographic services). In that way, I feel the state and legislature has already partially acknowledged the hard work that we do. But it’s no secret that court reporter businesses, for whatever reason, have chosen to make originals cheap, and make their businesses more or less dependent on these copy sales. It’s often reported in social media circles that attorneys at a deposition will openly and in front of the stenographic reporter offer to copy and give the transcript to counsel that would otherwise have to order the transcript from the reporter. Why not? As best anyone can tell, it’s legal! There’s also a darker side to this. If you do not have a clear agreement with your agency stating otherwise, they can probably also legally copy your work and not tell you about it. Again, why not? It’s legal!

The question arises, what do we do about this? Many ideas have been floated over the years. Some say we should change our model to reflect the lost copy sales and consider charging in a different way, like hourly, per diem, or a higher original. Personally, I believe it would not be unfair to create a body of law protecting stenographers’ rights to their work. Transcribers would probably be equally in favor, and it would certainly slow the rate of copying if it were explicitly not legal.

Many ideas have been floated in this regard, including putting it under theft of services. I don’t think anyone supports throwing attorneys in jail over this. That’s unreasonable to me. But I do think it’s fair to create a civil penalty for the copying of transcribed work. Virtually everything else is protected via patents, copyright, or intellectual property laws, and it seems weirdly unfair to have a class of people whose work is wholly unprotected.

I would propose language to the effect of “No person or business entity shall copy, reproduce, publish, or dispose of to another a copy of the transcript of any matter transcribed or stenographically reported. A person or business entity that violates this must pay a copy sale to the stenographer or transcriber that created the original transcript. Such copy sale price shall not exceed the mean average of the stenographer or transcriber’s copy sales for the twelve months preceding the copying, reproduction, publishing, or disposal.”

Now, if we were to propose such law, there’s a strong possibility we would have to make some concessions. Let’s be fair, many of these matters are matters of public domain and importance. I would propose a few important carve outs, such as, “nothing in this law shall be construed to abridge the right of any person to critique, cite, discuss, parody, or utilize a transcript’s content in any expressive matter.” This punches a bit of a hole in the law, but look at fair use in copyright law, and you’ll get what I’m trying to do. Also, “nothing in this law shall prohibit any person from preparing or having prepared by another their own transcript of the same proceeding or matter.”

There are some bigger issues we’d have to deal with. Would this law exclusively cover private transcribers / stenographers and not public employees? That’s a fantastic question. As a stenographer, I’m sure everyone knows where I stand, but as someone who reads a good amount of law, I understand that government work simply works out that way sometimes. I think if we’re serious about a New York City, New York State, or even someday federal law on this, it’s entirely doable. I think the important thing is prohibiting copying while allowing “fair use” type cases that don’t prohibit freedom of speech and expression. Notably, we could always go the way of this proposed Florida rule, which states plainly, “subdivision (g) requires a party to obtain a copy of the deposition from the court reporter unless the court orders otherwise…”

As always, discuss away or email me! It’s always fascinating to see what others have researched. Hopefully, if ever it becomes a serious discussion by our lawmakers, they’ll also get a chance to consult with authorities in our field like NYSCRA, NCRA, or even ASSCR.

January 2020, Just Apply!

Courtesy of the links I’ve got up at Get A Real Job, here’s what we’ve got posted around the Internet at the start of the new year. Freelancers can check the bottom for some ideas. Just before we roll into that, remember that NYSCRA has a free mentoring program, and people can use NCRA’s Sourcebook for unconventional moves like finding a mentor. If you’re a student or a new reporter feeling kind of lost, you don’t have to go it alone, reach out. Even people five years on the job have said “wow, sometimes I feel like I need a mentor!”

But you’re not here for that. You’re here for the jobs, dammit. Perhaps unsurprisingly, this month we have the Bronx grand jury job still posted. That’s a Reporter / Stenographer title as a City of New York employee. Side note, the Queens DA site is down so I have no idea if they’re hiring. I guess I’ll have to snail mail them. More side notes, the DCAS Reporter Stenographer application scheduled in November has been postponed, and there does not seem to be a date for it on this DCAS schedule, up to April 2020.

There’s no civil service exam out for NYSUCS Court Reporters because they just had the last test in Summer 2019. They generally hold the test every 1 to 4 years though, so keep an eye out. Even though the civil service exam is probably a little way off, Court Reporter provisional applications are being accepted continuously statewide according to the website.

In the least predictable move ever made, we move on to federal jobs. There are three Southern District postings in New York, including part time and full time work. Whether that means they need three people or one really good one, go for it! There are also a number of federal positions all around the country. Maryland, Oklahoma, Texas, West Virginia, Massachusetts, Arkansas, Utah, Tennessee, North Carolina, Washington, Washington, D.C., and Florida. Remember what happens when they can’t get good stenographers in those positions. They settle for less. Spread these jobs around, don’t be shy.

From the freelance angle it is troubling to me that for years I rarely saw agencies advertise looking for steno reporters and yet I see many postings continue to pop up for digital reporters now. It is not inappropriate for stenographers to take this for what it is, a sign that securing private clients may be a way forward to secure future work, especially if our trade and methodology is not going to be front and center of these old businesses. Take the leap, file with NYS, get yourself on the vendor list of NYC VENDEX or NYS procurement, get on the insurance companies’ procurement lists. Navigating the business world is not an easy thing, but it is entirely possible for anyone that sits down and starts familiarizing themselves with how people buy and sell services and where to find people that buy what we do. Pricing is another monster to tackle. Depending on the contract, people might bid super low original prices just to get copies locked in. Some contracts don’t really have many copies so a high original is necessary. There’s no manual I know of, it’s all straight experience and getting yourself situated as a player in this game, not a pawn.

Let’s win it together in 2020!

October Occupations 2019

Before we get into this post I just want to say I updated the old Get A Job post to include the exams page of NYSUCS. I still say that every jobseeker in New York should be checking the pages linked there every 15 to 30 days to be safe. Share findings. Be committed to keeping everyone up to date. If everyone is talking about where the work is, nobody’s left in the dark.

Even though this page launches October 1, postings are only current as of September 30.

DANY is still hiring for their grand jury reporter position. It’s a great job. Definitely give it a shot.

Special Narcotics Prosecutor, as I recall, had a posting for one grand jury reporter. Now there’s a posting for two. I say that if you haven’t applied yet, it’s your lucky day, go for it.

The state court system is still accepting applications for the provisional court reporter job. If you didn’t take the test, it still might make sense to apply. If they didn’t get enough passes on the civil service exam, they’re going to need you.

Southern District, that’s federal court, is still looking for a reporter. Don’t let this great opportunity go to waste if you’ve got the certifications or skill necessary to work with SDNY.

There are over ten vacancies federally all around the country. If New York’s not where your heart is, no big deal, but you’re not allowed to leave (joke).

Plaza continues to keep a posting for court reporting and English instructors.

New Jersey has apparently started hiring for the first time in a long time. I had posted this on Facebook but not on Stenonymous. Hopefully the government has realized the inherent value of having someone personally responsible for making the record.

Freelancers, I know that there’s often not a lot of postings on here with regard to work for you. I will work on something that might help there. Until then, you’re free to check out my recent post on historic data and inflation, as it impacts every dollar we make every day we breathe. I have been getting emails from Magna claiming over $100 in bonus fees. Now that I think about it, this probably gives you a clue what’s actually being charged for appearance fees, and a peak into the law of supply and demand. You’re in demand. Your skills are in demand. Act accordingly, do great work, and make a great record.

Fun fact. In the editor this post has no bullet points. In the preview it does. Which version will everyone see? That is the question. If you’ve ever wondered why some posts seem to have bizarre formatting, I blame computers.

Shortage Solutions 10: Contract or Employment

Can you believe this blog has covered 10 ideas for addressing the shortage? Time flies. Having given the whole court reporting shortage issue some more brainstorming, it’s worth bringing up for discussion the solutions that will follow. As always, happy to have comment on this issue. First, contractual agreements. In the field today, many reporters work under a verbal agreement, or a very informal email or rate sheet agreement. Even in places where independent contractors are required to have contracts, much of the business is contracted verbally or less formally.

Anecdotally, there’s something respectable about putting things in writing. People are more likely to live up to their word when there are clear terms of engagement. Need a freelancer to be on call to cover? Get it in writing. Throw them a little consideration (money) for their availability. Create easy-to-understand terms and expectations on availability. Create fair and realistic penalties for breach of contract on either side, or remedial terms that both sides can live with.

That lets me move on to another thought process. There is nothing in US law, to my knowledge, that prohibits a company from hiring employees and paying them a per-page commission or per diem rate. Pretty much no reporter makes less than minimum wage, so compliance with minimum wage laws is trivial. What is stopping a company from shifting its workforce from 1099 reporters to employees? Nothing. Nothing but a different set of paperwork and some accounting changes. Compliance with workers compensation laws may need a little creative insuring to allow reporters to transcribe from home if they choose to give employees that option. But this does not seem like an impossibility, merely a challenge for the entrepreneurial to overcome.

Why these solutions? Frankly, one of the issues with shortage boils down to the inconsistency of freelance reporting. If reporting firms nail down some availability, via employment contract or independently-contracted agreement, they can have a more realistic idea of how many reporters they have versus how many they need. Businesses survive and thrive off of mastering their staffing needs. Reporting businesses will be no different, and in the end will rise and fall based on their ability to meet demand. In this case, the demand being the service that so many stenographic reporters are ready, willing, and able to provide.

Recording Grand Jury (NY)

So I’ve been following the facts on a series of cases picked up by the Batavian and Daily News. The very short story, with some extrapolation, is that a grand jury stenographer contracted by the district attorney was apparently using the AudioSync feature in our modern stenotypes. This caused the defense attorneys to seek dismissals of the indictments. As best I can tell, and after writing Batavian author Howard Owens and one of the attorneys, who had stated it was a Judiciary Law misdemeanor, I pieced together the following with regard to grand jury recording law in New York:

Criminal Procedure Law 190.25(4) makes it very clear that grand jury proceedings are secret. Judiciary Law 325 gets into how it shall be lawful for a stenographer to take grand jury proceedings, and doesn’t explicitly allow audio recording. Penal Law 215.70 talks about unlawful disclosure and lists the crime as a class E felony. Finally, Penal Law 110 tells us an attempted E felony becomes an A misdemeanor.

What can we further infer from all that? Well, as best I can tell, the indictments are only dismissed if it’s shown that the recording altered the testimony or proceedings in some way, and the defense is given the burden of proving that. As of writing, no indictment has been dismissed because of recording. That said, this opens up a serious concern for grand jury stenographers across New York. Recording the grand jury proceedings may be construed as attempted unlawful disclosure, and thanks to Judiciary Law 325, it may be difficult or impossible to argue that such recording is in the course of your lawful duties. Like Frank Housh in the video linked above, I was shocked that we could work in this industry for years and not ever be told the law surrounding that. Admittedly, I was a grand jury stenographer in New York City for months, and while I understood that not recording was a condition of my employment, I did not know that recording could theoretically give rise to a criminal prosecution. It is up to us to keep ourselves and each other informed, and now we know. This is not a joke, and you could go to jail for up to one year and have a criminal record for up to ten years on an A misdemeanor.

That caution stated, as of writing, there has been no prosecution of any grand jury stenographer for that specific reason, so it seems that the district attorneys or assistant district attorneys involved in these cases disagree with defense’s contention that this rises to the level of a misdemeanor. It also appears that recording of the proceedings does not automatically invalidate indictments.

The court rules Part 29 and Part 131 did not come up in my correspondence with anyone involved in this matter, but they are tangentially related and may be worth a review. And remember, nothing written here pertains to federal grand jury proceedings. We are talking strictly the New York State courts.

Any future updates to this matter will be posted right here.

Guarding the Record Against Misinformation

Came across some commentary that I’ll call a smooth sales pitch by Steve Townsend, co-founder of AAERT. He correctly points out that the steno shortage has been widely reported, but goes on to draw a number of inferences and conclusions that I find remarkably questionable. There is the claim that steno schools are closing, graduation numbers are dropping, and interest in the career is very low. You can trust him, because he backs that up by saying this is all true.

Well, maybe a few years ago, we could’ve agreed. But this was written August 6, 2019, when stenography is headed back into a steep incline. Programs are picking up stenography. Established programs like Plaza College are creating more awareness through newsworthy events like the court reporting symposium. Several stenographic initiatives have drummed up support and interest for this wonderful field. Just to name a few, NCRA’s A to Z program, Open Steno, Stenotrain, and Project Steno. There are stenographers all around the country asking their local college programs to consider beginning a stenographic course, and interest in the field is ramping up.

Court reporting firms across the country are sticking with steno wherever and whenever it’s available. It’s no surprise that stenography is the desired method because we are four to five times more efficient than the average typist, and have some heavyweight software companies on our team. From advanced note analytics, like CaseCAT’s steno x-ray, to Eclipse’s translation magic, a single modern stenographer has the tools and capability to match the production of multiple transcribers. It was true back in 1972 when stenographers performed with a higher degree of accuracy when tested against audio, and that hasn’t changed. The FJC had all this data back then, and has had the data through the present, and yet somehow the district courts still use many stenographers. Reality tells us we are the superior choice when it comes to quality and cost. Townsend’s great argument, that years ago they said that they could record the court with appropriate management, is a far cry from providing the very best service available to the legal community. If there was a modicum of honesty, Townsend would tell lawyers looking for stenographers to go look in the NCRA Sourcebook. If the shortage is so severe that “soon” there won’t be stenographers, that’s no threat to his business.

There’s just nothing to match the institutional knowledge and commitment we have with regard to preserving the record. AAERT’s fabled Best Practices Guide hides behind a paywall. In stark contrast, our NCRA, the National Court Reporters Association, has publicly maintained its advisory opinions and continues to foster transparency and consumer awareness. It’s entirely open to public scrutiny. Who benefits? The consumer. The lawyers, litigants, and judges we serve every day.

Some easy math will tell you we are a ways off from not seeing stenographers at depositions. The Ducker Report told us about 70 percent of the court reporting field was freelance. That means that you’ll stop seeing stenographers in court long before you’ll see an end to them at depositions — and that’s assuming all the steno projects and programs I mentioned in the beginning fail. That’s assuming that every recruitment effort we’ll make as an industry in the next decade does nothing.

Now add on top of that the fact that if we’re inputting words at 225 wpm and the average typist is getting 40 or 50, you need 5 of them to replace every one of us. Even an exceptional typist at 100 words per minute — and having thousands of such exceptional typists — would mean requiring two transcribers for every single stenographer today. If anybody thinks there’s a problem getting transcripts today, just wait for the future promulgated by AAERT, millions of cases with no one to transcribe. As long as they can sell their equipment, they’re good. The transcript and the legal process is, at best, an afterthought.

I’ve reached out to Legal Tech News about possibly writing a commentary on why stenography is the best tech to protect the record. We’ll see if that pans out. But let this serve as a reminder not to let these folks demoralize you. They have a lot of money riding on most of us staying quiet and letting their voice dictate what is accurate. In reality, the gentlest glance at their arguments reveals a fragile facade. This is all true.

August 12, 2019 Update:

Eric Allen, ASSCR President, got his own commentary published on Law.com. This is precisely what I meant in terms of us actively participating in the conversation.

Can’t Outspend? Outsell.

When many of us were in school we were given a line, steno sells itself. Many of us can probably relate to that. Most steno companies, upon hearing you’re a professional stenographer, will give you a shot. Many of us in New York came out during a big slump (2010) where steno wasn’t selling itself, but even then, it was trivial to get work. All we had to do was say we’d been working three months, and “they’d” go from sorry no work for you to “oh, here are the keys to the kingdom.” Not all of us knew it, but that’s how it was. Agency owners are good at reading confidence, and what we’re offered is often linked directly to our confidence level.

Of course, the following may be an incorrect assumption on my part, but bear with me: We have entered an era where steno is not selling itself. Company owners are being pulled into the mindset that the voice recognition is “good enough,” and some of the major players, like Veritext, have been pushing recording.

I should note, in full disclosure, that I have not been able to corroborate what I’m about to say with documents or pictures as I usually do. It’s pulled from the social media sphere, so consider it anecdotal for now, and do not be surprised if agencies start railing against social media. Even as some claim that Veritext sent an email stating they were not using recording in states like New Jersey, others have come forward across social media to say yes, this is being done behind our backs. Many of us are reportedly asking lawyers what they’re seeing, and they are seeing digital getting peddled to them relentlessly.

So what do we do when we have major players putting their resources into our replacement? Who here thinks they have more money that Veritext or their owners? Hopeless, some would say. But there is something that many reporters are realizing: This alleged shortage is a great time get private clients and begin new businesses. If Veritext or some entity swears they can’t get a stenographer, some lawyers have allegedly called their insurers and gotten authorization to use a local stenographer or stenographic firm. All their marketing moves and salespeople count for nothing if a stenographer finds themselves in the right place at the right time.

We’re the boots on the ground. We have more contact with law office staff and employees. We have the keys to the kingdom. But the people at the top have made it very clear that they’ll do whatever is convenient for them. It’s time we do the same for the survival of our industry. We don’t work for them? Try it. It might just give us access to their clients. We work for them? Guess who already has access.

Even if we don’t want to handle private clients, we could always network with an existing firm owner out there and get them clients in exchange for the work or a share. If we’re even moderately successful, big companies will be offering to buy back their business from us in a few years, and the field will be a lot healthier once the market share is spread out. Our actions determine the future. The conversation today is steno or digital. Tomorrow it just might be stay steno or slam sand.

Sexual Harassment for Stenos

I’ve had the privilege of reading about the recently reported case of harassment by a judge in Illinois of a stenographer and police officer. Cook County Judge Mauricio Araujo is charged with having asked a stenographer “how much” for sex. Of course, this is the kind of behavior that makes headlines. But inevitably, there is something that happens any time an event like this makes papers. Many of my contemporaries, coworkers, readers of my blog, and just people in general begin to share their stories of the time that they were harassed or the kinds of experiences that they’ve had to deal with. Some of it is relatively tame and mutually laughed away, and some of it is downright illegal and should never be suffered by anyone in the workplace.

With every single one of those victims in mind, let’s start an informative discussion about what you might be able to do with regard to sexual harassment in your workplace. For purposes of this discussion I will focus primarily on New York State and federal law, because that’s where I am most knowledgeable, and I encourage all of us to spend some time researching and spreading information about our own individual states.

What is Sexual Harassment?

Before we do anything, let’s define what we’re talking about. When we discuss sexual harassment, there are three common forms of it. There is sexual harassment as defined in employment law, which is typically ongoing remarks due to a person’s sex, an ongoing pattern of discriminatory behavior because of a person’s sex, or retaliation for a person’s refusal of quid-pro-quo proposals from a manager. Succinctly, treating somebody adversely because of their sex is illegal. This logic extends to the manager who starts putting you on bad shifts because you won’t date him or her, or the coworker who continuously asks you to date him or her. The idea is the same: They are treating people adversely, affecting their working conditions, because of sex. The EEOC describes it as behavior so frequent or severe it creates a hostile work environment. The majority of this post will be about this primary type of employment harassment.

The second form of harassment is criminal harassment. Every state is going to have different laws on this, but criminal harassment can include things from simple Penal Law violations like Penal Law 240.26 harassment,  which can include striking or following someone, to things like Penal Law 120.50, stalking, which is more or less to engage in a course of conduct that puts someone in reasonable fear of kidnapping or physical injury. This second form of harassment can be reported to the police or your local district attorney.  The authorities can decide whether to bring charges or ask the criminal court for an order of protection on your behalf. If you are being harassed by someone you have had an intimate relationship with, you may be eligible to apply for an order of protection in family court, or in whatever court handles family law in your jurisdiction. Empower yourself and take a stand against this kind of treatment — and know you’re not alone.

The third form of harassment is harassment that doesn’t violate the law. Very briefly, people have very differing opinions when it comes to what the law should be, how harassment should be defined, and how seriously different events should be taken. It’s fair to give credit to this third type of harassment in that it can be unsettling, uncomfortable, or otherwise a rotten experience for its victims. Note that employers are generally allowed to set their individual sexual harassment policies very strictly, so even behavior that is otherwise legal may violate your employer’s sexual harassment policy and get an offender fired. That said, respectfully, we’re going to go back to harassment in an employment context.

Employees.

With the understanding that the majority of stenographers nationwide are freelancers, I will start with employees because it is simpler to describe. Succinctly, under our federal law, the Civil Rights Law of 1964, Title VII, employers with 15 or more employees have a duty to stop discrimination against protected traits in the workplace. Protected traits include things like your race, creed, color, and sex.

So when we talk about harassment, we’re talking about discrimination that is occurring because of one’s sex. This can take many forms including a man constantly describing sexually explicit conquests to another male employee despite being told to stop because he’s “one of the guys” to, as earlier described, a supervisor requesting sexual favors in exchange for a more favorable job outcome or working condition. Generally, under the law, offhand comments or one-time incidents are not harassment. Generally, the unwelcome sexual harassment has to cause a hostile work environment from both your perspective and the perspective of a reasonable person. What this means is that it may hurt your a claim of harassment if you were inviting the harasser to make inappropriate comments, or if the “average person” wouldn’t consider it conduct so abusive or hostile that it would adversely impact their working conditions. Obviously, every situation is different, and there are a million reasons a complainant might make light of a situation, so you should know that even if you are unsure if the behavior violates the law, you may report it.

Typically, when you are being harassed at work, you must inform the employer. The employer has a duty to make that harassment stop. If the harassment does not stop, then you may file a charge with the EEOC. The EEOC will typically get your side of the story, get your employer’s side of the story, and then either attempt to mediate, take the case on your behalf, or give you a right to sue letter, which allows you to file a civil lawsuit against your employer for not making the harassment stop. A special note here, the right to sue letter sometimes has language such as the EEOC did not find discrimination — this “finding” doesn’t mean anything. The EEOC is not obligated to investigate deeply, and the courts do not hold you in any lower standing because of this letter. It is a standard letter which gives you a cause of action, a legal right, to sue. You can even, as far as I know, appeal the decision with the EEOC or request a hearing.

If you feel you are going to go through with a lawsuit, it is a good idea to speak to an employment lawyer right away, even before you get a right to sue letter, and possibly before you file an EEOC charge. If you are compelled to bring a case without a lawyer, you should definitely contact the local district court’s pro se unit. You will need to draft a legal complaint that meets the standards set by the Twombly and Iqbal cases, meaning you will have to draft a complaint that alleges facts that make out a valid claim. If it says “defendant harassed me,” that’s conclusory. If it says “defendant pushed me into a corner and said if I wanted to keep my job, I’d better do what defendant says,” that’s a factual statement. Overall, a good employment lawyer can go to bat for you and make that part of the process happen. The NYC Bar runs a legal referral service, and many lawyers waive their consultation fee. Some associations and lawyers also run legal clinics to help people with their legal questions if you have absolutely nobody else to turn to.

Ultimately, when you file an EEOC charge can be very important. There is a fairly strict 180-day time limit. For this reason, some individuals make a charge with the EEOC immediately upon notifying their employer of the harassment. Again, there is nothing wrong with this, and it is just asserting one’s right to not be harassed at work. 180 days may seem like a lot, but for a victim of ongoing harassment who is afraid to come forward, it can come and go in the blink of an eye. Pay special attention to when the bulk of the harassment you are looking to complain about happened.

Also know the process for filing a charge of discrimination may be different if you are a federal employee.

A quick note about retaliation.  Often victims of workplace abuse do not speak up because they fear being ostracized or bullied by coworkers, supervisors, or other agents of the employer. This can be a very difficult decision to make, and nobody can ever blame a victim who does not come forward out of fear of further and amplified mistreatment. That being said, you should know that even if your claim of harassment is completely incorrect — meaning you believed there was harassment but the person you complained about is found to have not violated the law at all — you are still one hundred percent entitled to be free from retaliation. More abusive employers may suddenly try to put you on a work performance log, or switch your assignment to make you quit. If your employment is adversely impacted, you can file another charge with the EEOC, and even an employer that was totally in the clear can find themselves in hot water by retaliating against or allowing retaliation against an employee that has made a complaint to the employer or filed a charge with the EEOC.

A final important fact: The law recognizes that these situations are often complex, and there is not a one-size-fits-all solution. The employer is obligated to make the harassment stop. Some employers do that by firing the harasser. Some employers do that by offering additional training to the harasser. Some employers do that by giving the harasser an ultimatum, or transferring the harasser elsewhere. As a complainant, it is best for your own peace of mind to go into the situation with a mind towards resolution. This isn’t to say that people that commit harassment don’t deserve to be fired or that there aren’t cases where the employer does not take strong enough action, but it is to say that the reality is that the law allows a very wide variety of solutions, and if the harassment stops, you may have to come to terms with the harasser keeping their job.

Employees in New York, I do urge you to skip on to the “True IC” section, where we will address more rights you have.

Independent Contractors (Misclassified).

If you are an independent contractor but the hiring entity — the company or person that is hiring you as an independent contractor — is treating you as an employee, you may generally make the argument that you are a misclassified employee and that you are entitled to all the protections we just laid out above. In the post Workers Rights, we got right down to it and brought out the cold truth: Employers stand to make 30 percent more by misclassifying their employees. There is huge money in misclassifying employees. Honestly, if they are having you carry around their advertising material, micromanaging the manner in which you perform the work, and generally exercising direction and control over you with regard to the job you do for them, you may have a valid claim that you are a misclassified employee. Of course, this argument is so much legalese for the average person, that if you feel you fit into this category, it is likely in your best interest to talk to a lawyer about it.

Remember this: If an employer is giving you a 1099 and then using you as an employee, that’s illegal. What you both call the relationship is irrelevant. What matters is how they treat you. As a quick example, California came up with a three-part independent contractor test that is one of the strictest in the nation. If the work performed is the same as the hiring entity’s business, the hired entity should actually be an employee. Logically, this creates two ways of thinking. 1. Court reporting businesses aren’t in the business of court reporting, but finding court reporters, which the courts have ruled an unpersuasive argument in whether or not they should follow regulatory rules (Moose v US Legal). 2. Court reporting businesses are misclassifying their employees as independent contractors. Other states like New York include this in their determinations for things like Workers Compensation, but we do not as of today have a strict standard, and all cases are done on a case-by-case basis.

Independent Contractors (True IC).

Now we get to independent contractors who are indisputably independent contractors. It’s a sad thing to report that there is basically no protection for independent contractors federally. It is more or less legal for you to be discriminated against and harassed, and there does not seem to be any movement in Congress to pass laws stopping any of the behavior mentioned in this post. Notably, there are some articles out there that talk about complaints and possibilities for federal contractors or employees of contractors receiving federal money, but the hard truth is that a discrimination claim as an independent contractor is largely a lost cause. Until our Congress or our president act and make it clear that the workers of the gig economy should be protected, sexual harassment against independent contractors will be legal.

Or is it? If you are a New Yorker, we actually have in our constitution a section that has come to be known as the New York State Human Rights Law. New York City also has a New York City Human Rights Law. Both of these largely mirror Title VII of the Civil Rights Act of 1964, and prevent discrimination based on protected traits or classes. Generally, it is even easier to bring a claim under the New York City Human Rights Law than under Title VII. The New York City Human Rights Law, in the words of some lawyer blogs, puts less of a burden on victims of sexual harassment bringing a claim. Even luckier, the legislature has amended the New York State Human Rights Law to demand that employers protect non-employees in the workplace.

What does this mean? This means just like an employee, you have the right to go to our New York State Division of Human Rights or an employment lawyer and get help with sexual harassment you receive “at work” or “in the workplace” whether you are an independent contractor or an employee. The bottom line is that the place you are working at has a legal duty to make the harassment stop. Remember that unlike Title VII of the Civil Rights Act 1964, the New York State Human Rights Law protects sexual orientation. Understand that in New York, whether you’re an employee or an independent contractor, you have these rights, and rights only matter when you assert them.

Empowerment.

We live in a time when knowledge is at our fingertips. Any person could string together a bunch of links and some explanations about this stuff. Far be it from me to say that my perspective is the right one. But I see it as this: We know there are victims out there, and we know that these sorts of things happen. Therefore, it is down to us to share this knowledge with those who are facing these problems, and create an environment where harassment and retaliation are not only the exception, but eradicated. Personally, I have seen a community where, when these things happen, stenographers stand more or less unified with each other. It’s through that kind of unity and solidarity that makes this a great field to work in, and can make this a field that teaches all of its members how to respond to or what they can do when they face sexual harassment or workplace discrimination. Simply put, the way forward is together.

August 12, 2019 update:

NEW YORK has apparently taken further steps since my article to facilitate judicial accessibility for sexual harassment victims, including lowering the standard by which such allegations may come to court.

 

 

Law For Stenographers (US) (FRCP)

I had previously shared law for Stenographers in New York and my understanding of New York law as it pertains to remote swearing of witnesses. I wanted to bring out some information about the Federal Rules of Civil Procedure, which govern our federal depositions and activity there. The bulk of the Federal Rules have nothing to do with stenographers, but there are a number of Federal Rules that pertain specifically to our duties as stenographers and what they label as officers or deposition officers.

Rule 28. Rule 28 (a)(1)(A) lays out that a deposition may be taken before an officer authorized to administer oaths by federal law or by the place of examination within the United States. You should be very familiar with your state law as to who can administer oaths, or ask to be qualified by stipulation pursuant to any of the rules we are about to get into.

Rule 30. Rule 30 (b)(5), very similar to our CPLR in New York, has language that “unless stipulated by the parties…” long story short is that that “unless” language opens up the opportunity for parties to stipulate to things like remote swearing, or alter the procedure. Once again, one of the few times in law that attorneys can stipulate away the law. Please know a reader wrote to me on 1/16/20 and stated their interpretation was not that the attorneys can stipulate away notary law and have the notary swear the witness, but rather proceed as if the witness is under oath and have them read and sign as such. As of yet, I have no case law on this issue.

Do note there there is a list of stuff you as the officer is supposed to do here, like placing your name and address on the record, the date, time, place of the deposition, deponent’s name, your administration of the oath, and the identity of all persons present. At the end, you must state that the deposition is complete and set out any stipulations of the attorneys.

Rule 30 (b)(3) states the method of recording the deposition must be in the deposition notice. Do yourself a favor and educate attorneys to ensure their deposition notice says stenographically recorded.

Rule 30 (b)(4) explicitly allows remote proceedings, and with the language in Rule 30 (b) (5), and in the absence of contrary case law, one may draw an inference that so long as you are not violating your state law, it is also permissible to swear a witness while not in their presence.

Rule 30 (c) (2). Again, like our CPLR in New York, objections need to be made at the time of the examination on the record. If they have objections to the way you’re swearing or what’s occurring, they need to make them then and there. Long story short, they can’t really come back 9 months later and say you did something wrong — though they may try.

Rule 30 (e) tells us that upon request by a deponent or party before the deposition is completed, the deponent must be allowed to review the transcript. This is what we call read and sign.

Rule 30 (f) explains how the officer is to send the deposition to the ordering attorney. Common sense stuff like identifying it and sealing the envelope. It then largely becomes the responsibility of the attorney.

Rule 30 (f)(3) says unless otherwise stipulated, you have to retain your stenographic notes and provide a transcript upon payment of reasonable fees.

Rule 32. Rule 32 (d)(2) makes it resoundingly clear that any objection to your qualifications as an officer at the deposition must be challenged promptly, either at the deposition or soon thereafter. Rule 32 (d)(3) again makes it clear that objections that are not made pretty much at the time of the deposition are waived.

Addendum:

Unsworn depositions, particularly on the federal side, can open up reporters to liability. See Dineen Squillante’s post on this. Looking forward to its publication in Vermont!

The Cost of Doing Business

Dragging up part of an old retainer agreement just to prove a point here. As you can see from this example, if the case went to depositions, the law firm intended to charge almost fifteen dollars a page to me, the client. Let’s just say that in New York at that time, 2014, it was pretty easy to find someone to do it for 4. Many of my contemporaries were working for $3.25 a page or less. Being somewhat shy, I never bothered to ask why that was so high or explain the going rate of a stenographer.

But this should raise some questions for us in the field. If this was in a retainer, what kind of rates are really being charged for our services? Is there really a race to the bottom? Certainly, some owners have bid low to get contracts, and that can hurt our fees, but I have felt for a long time that if we started to see invoices from various law firms around the city and state, we’d see a pattern emerge of winners and losers.

The losers are undoubtedly those who do not make it part of their business to learn what they are truly worth. Learn exactly what the market will bear and demand it. The lucky thing about being a loser, I can say from experience, is that it is a mindset more than a personality trait. We all have the capability of changing our minds, pulling ourselves out of a worker mentality of “I will work and get what they pay” to “What is my value really?”

In deciding your rates and what you want in life, you should create a simple spreadsheet or list. You can use Google Sheets today for free. Write down all of your expenses. Your business and personal expenses. How much is your food, shelter, supplies per month? Add to those expenses any business expenses you might have to improve your business. Think classes, certifications, equipment. You take that list of expenses, and you have the absolute bear minimum you must make. Now consider what you would like to make. Go over to my math tables on how many pages you need to make your desired annual salary. Look at the different amount of work you have to do at each rate, and see for yourself the cost of doing business.

Remember that you are the provider. It’s not going to get much cheaper than your expenses unless you live a very lavish lifestyle. Why does everything cost so much? Because at the end of the day, people and their families have to eat. So don’t be shy about applying that to your business, asking questions, pushing up your rates when appropriate, and be confident about the skill you’re selling. Hopefully seeing $14.95 in print raises questions for you like it did for me. You’re a winner, earn like one.