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.

NYSCRA Bagels and Lox February 2019

Some will have seen an article authored after a little prodding and editing (AKA help!) from another reporter, Devora Hackner. Photo archive here. Obviously, I had overall positive impressions from the entire event. Got to meet Steno Joe in person! The food was absolutely amazing. There were literally three or four tables of food and everything from bagels to sushi. NYSCRA spared no expense and its sponsors did an amazing job. If you were a non-steno there to learn about steno, you walked away sated and happy. I do think it was an important showcase of our field, and there were over 100 seats, most full.

Unfortunately the structure of the event prohibited me from seeing the CaseCAT and Eclipse trainings, but I know both trainers are at the top of their game and I have personally attended Anthony Frisolone’s past webinars and a Local 1070 seminar, and it’s always been a wonderful experience. If you need CaseCAT help, Anthony is the man. His training is worth every dime. Quick note, the photography by Shmuel Amit was also amazing and is featured mostly along the bottom of the original article.

There are two major points that don’t get covered in the article because Stenonymous and that article have different audiences. Firstly, when Jane Sackheim got up to speak, it was an honest surprise. Hadn’t been on the agenda. It’s rumored Diamond put 1,500 or more down on the event though, so there’s no real issue with letting a sponsor like that get a few words in. If I had a sponsor that good, we’d be sponsoring stenographers to visit NYC high schools. Jane did say there would always be a need for court reporters. Given the current climate, I hope she meant stenographic court reporters, but given that she was funding a NYSCRA event along with ASSCR, we’ll assume it was stenographic court reporters! Then there was a talk about balance.

Jane said it was always a balance between paying what a reporter would accept and charging what a client would pay. That is an insightful thing to think about and consider. Not every single proceeding is worth $400 per page, and there is a certain point where clients just wouldn’t pay. That said, I have always been under the belief that we are incredibly underpaid in New York. When I was freelancing, many of my contemporaries and I were making in the ballpark of $3.25 per page and 0 to 50 cents on a copy. Back at that time (~2012) I met some freelancers out from Ohio who reported they made a dollar or two a page on copies. Different markets? Yes. Different jobs? How different can they possibly be? We had a hard time negotiating here in New York. We were told there were too many reporters and not enough work because that was a convenient thing to say to get us to accept low rates. Now there’s a reporter shortage but we shouldn’t ask for more because clients won’t pay it? All the respect in the world for a woman that built a business and ran it so well that Veritext decided to buy it out rather than compete with it. There’s power to the personality that runs the ship. But here is something I think every reporter should consider: We don’t know the truth until invoices start leaking. We don’t know if the copies are being charged at a buck a page or 4.85 a page. We have to question it for ourselves and decide how to build our own brands and reputations. We don’t know and therefore we can’t say with certainty today what the truth is, but it’s probably somewhere between clients won’t pay and reporters expect too much. We know there’s a serious profit margin in the business because almost every reporting firm has a main office and a satellite office in every borough of the city, and I would point to that each and every time someone says the agencies are hurting. Do business with these agencies, and do good work, but be open to the idea that sometimes you are told things that are subjective are objectively true. We did over 900 math calculations, and to not be working all the time, you either have to be a fast transcriber or making in the ballpark of $5.50 a page average. That’s a tall order, but I believe that if agencies and reporters continue to put down money and ideas to enhance the field and our professional organizations, we’ll be okay.

Without further delay let’s end this on a high note. Nonmembers who attended get $18 off their membership this year. Also, NYSCRA did something incredible. They asked for the following:

    Seminar speakers you’d like to see.
    Seminars or speeches you yourself would be willing to conduct.
  • So what’s left to do? Write NYSCRA today at nyscra@bowermanagementservices.com or head over to their site at NYSCRA, tell Tim he’s doing a GREAT job, and share your thoughts and ideas. They’re asking for them! Personally I’d love a few seminars for freelancers on how to be marketable to agencies and how to be marketable to attorneys directly. Hopefully in the coming weeks we’ll have an interview with Eve Barrett of the Expedite app to discuss exactly that. I think these things are perfectly attainable, but it’s time for members and potential members to ask for them.
  • 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, anticontracting, 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.

    Knowledge Preserved Is Power

    Connecting Dots.

    To some degree, we all enjoy researching pieces of history.¬†Sometimes it’s fun. Sometimes we learn things that nobody else knows. Sometimes we get to use our knowledge to help those close to us, and that’s a wonderful thing.

    But I had quite the experience exiting steno school years ago, I found that knowledge was hard to come by. I wanted to know all about the old Federation for Shorthand Reporters. I wanted to know why it failed, and I wanted to know what people’s rates used to be so I could compare them for inflation. Some stenographers were kind, and gave anecdotes, like they made $2.85 in 1989, which was interesting, because I was offered $2.85 when I began my professional steno career in June 2010. $2.85 in 1989 had about the same buying power as $5.20 in 2018. Sincerely, I’m told some have worked for less than $2.85 a page today. I’m basically saying freelancers should be making $5.20 on a regular easy. Laugh all you want, it’s the math. And that’s the point. How is this not common knowledge? How are we not talking about this? How are we not discussing the best ways to negotiate and pull up whatever we’re making today?

    Finding real concrete information was hard, and often, even when I became an established professional,¬†people who had some experience in the field were done with the field and didn’t want to take the time out to share their experiences.

    It’s imperative that I write a little bit today about why I started to preserve some of these ideas about the market, competition, and steno in general. Some of it is a modern look at how we might make things better, but also it’s about catching up, preserving knowledge, and putting it out there so that stenographers everywhere might benefit.

    Let’s be very honest. How easy is it for an agency to tell a kid out of school that they’re only worth $2.85? The kid doesn’t know! The kid doesn’t have anybody to tell them what was or what may be. The kid only knows they’re in the moment and they’re being offered XYZ. It’s not like agencies can’t afford stenographers, they just have an interest in paying the minimum that’ll get the job done. That’s the reality.

    We have probably 100 years of stenography. If we assume there was an average of only 20,000 stenographers in those years, that’s 2,000,000 years of life and steno experiences. The industry has survived and thrived. Our biggest weakness is that nearly all of the information today is locked up behind paywalls, private practice sessions, quiet conversations. This constant limiting of the spread of knowledge has hamstrung us like no enemy ever could. As Ariel Durant said, a great civilization is not conquered from without until it has destroyed itself from within. Connect the dots, lift people out of ignorance, and the civilization will take care of itself.

    Winning.

    It’s about training people not to be afraid anymore. It’s about reaching out to students and telling them where you’ve won, where you’ve lost, and how they can be successful. Give them real numbers. Ask how they’re doing. Tell them what people were making in the 80s, 90s, and now. Tell them how people outside of New York City make a dollar on copies. Tell them New York officials make at least dollar on copies. We cannot teach resourcefulness, but we can facilitate an attitude and environment where people understand the market and push for private clients and create stenographic-only firms. We can get to a point where companies like US Legal stop pushing their electronic recorders and start contributing to training more stenographers.

    The bottom line is that without a healthy field in multiple disciplines, eventually the train runs off the tracks. I hear a lot of people echo “come to court”, “come to CART”, “come do what I do because it works for me.” But the bottom line is to continue to thrive, stenography needs to continue to grow its market share, and it needs to push to retake where it has lost. A lot of victory has to do with perception. If stenography is perceived as failing, then it is less likely that people will want to get into it, and less likely that people will start schools dedicated to it. Such a perception would be a deathblow for this field.

    On the other hand, if it is seen as something new, exciting, and with growth potential, it will encourage people with money, entrepreneurs, and innovators to invest in it. We’ll encourage the building of more free steno materials. It will cause a boom for us, and if we’re smart about it, we may not see that boom end in our lifetime. So I’d say yes, absolutely encourage people to join your particular discipline, but also listen to their problems, and suggest how they might do better where they are too. It’ll make a world of difference for them on an individual level, and save all of us as a whole.

     

     

     

    A Word On Raises

    The bottom line of this story is going to be, “you need to ask for a raise.” What was quite common in my New York freelance years was many of us accepted, year after year, what agencies handed out. It is time for us to step out of our court reporting skins and be business people.

    There’s something called inflation. The really low level summary of inflation is that as more money is produced the value of existing money decreases, meaning item values go up. That’s why you could live off less money back in the 50s or 60s, and why everything is so expensive now.

    The buying power of the money in the bank goes down every year, and every year, the services you provide need to be charged at a higher rate so that you have the same buying power.

    Try it for yourself. Get an inflation calculator, type in your very first page rate or salary, the year you started, and the year it is now. A reporter told me that in 1989 they made $2.50. That’s worth $5.11 now. If they aren’t making $5.11, their buying power is shot.

    I did it myself. I sat down and said what’s a good starting rate for 2018? I was given $3.25 in 2011. Inflation calculator says that’s worth $3.66 now. I had a few friends who started at $4. That’s worth $4.50 now. But who wants to work for the same exact money every year? No. We want a raise. So what would a raise of 3% a year look like? Year 1, you start at $4.00. By year 6, you should be making $4.60. Look at those numbers again. Just to have the same exact buying power 2011 to now, you need $4.50 a page. To give yourself a $0.10 raise after six years, you need $4.60. Your cost of living is going to go up, and unless you make more money every year, your quality of life is going to go down.

    That’s really it. This is my case and my explanation for why we have to start talking about our rates. We have to start informing each other about simple business principles. We need to keep an eye on that inflation rate. We need to really take a close look at what we make on all our services and ask ourselves why our money for our associations, charities, and causes are so tight. We need to admit one thing: You need to ask for a raise.

    What’s In A Rate Sheet?

    In a moment of clarity, I sent a blog post of mine to a friend. She rightly pointed out that for many the confusion is not so much that there needs to be a contract or agreement, but rather many do not know what to put in a contract or agreement until they’ve been royally screwed.

    To that end, I set out to see what people put on their rate sheets. I asked court reporters from around the country and received two or three actual rate sheets. For purposes of this post I will not add rates. Perhaps, if people ask, we can have a whole other post with regard to rates and numbers people may charge. As a general note, I express no opinion on these line items, but this gives all an idea of what others do so that we may all emulate what we want to emulate. In no particular order, we have:

    • Same day.
    • Overnight.
    • Next day (daily).
    • Two-day.
    • Three-day.
    • General turnaround time expectations.
    • Deposition O&1.
    • Arbitration O&1.
    • Certified copy.
    • No copy surcharge (O&1)
    • Rough draft.
    • Rough draft or expedite with “free copy.”
    • Excerpt only surcharge.
    • Expert surcharge.
    • Technical testimony surcharge.
    • Medical testimony surcharge.
    • Video surcharge. (proceeding videotaped)
    • Interpreter surcharge.
    • Heavy accent/uncontrolled room surcharge.
    • Teleconference/video conference surcharge. (Held over video/phone)
    • Meeting/symposium/board surcharge.
    • Transcript not ordered fee.
    • Tape transcription with down payment.
    • Confidential/nonconfidential surcharge.
    • Appearance fee.
    • Holiday/weekend appearance surcharges.
    • Waiting time fee.
    • Night job surcharge.
    • Cancellation at or after 5 p.m.
    • Cancellation before arriving to job.
    • Cancellation after arriving before setting up.
    • Cancellation after arriving after setting up.
    • Statement on the record fee.
    • Bust fee.
    • Printing and shipping of exhibits.
    • Adding an agreement to pay to rush/special orders and/or terms.
    • Adding an agreement to pay according to the fee schedule.
    • Mileage/travel surcharges
    • Hotels/accommodations surcharges.
    • Sale of audio fee.
    • Notary-only appearance.
    • Space/room fee.
    • Witness review coordination fee.

    As anyone can see there are innumerable ideas and guidelines for what might go on a rate sheet. It is down to us to see to it that our time and skill is adequately compensated, and a big part of that is ensuring our agreements contemplate as many of the little what ifs as possible.