1 in 4 Court Reporting Companies May Be Unprofitable

In my Collective Power of Stenographers post, we explored how court reporters collectively out-earn every company in business today. In Aggressive Marketing — Growth or Flailing, we took a look at VIQ Solutions, parent of Net Transcripts, and saw how a transcription company could be making millions in revenue but be unprofitable. This all set me down a path of learning about zombie companies, companies that are not making enough to meet debt obligations, or just barely enough to make interest payments. You can watch Kerry Grinkmeyer describe how that happens here. This isn’t very rare. A Bloomberg analysis of 3,000 publicly-traded companies found one in five were zombies. The main takeaway? Companies can make lots of money and still be taking losses.

I had the pleasure of looking through the Kentley Insights June 2019 Court Reporting and Stenotype Services market research report. I do want to be upfront about it: I have some reservations about the methodologies and some of the reporting. Very much like the Ducker Report, as best I can tell, it’s based off a sampling of respondents from in or around the field. There are parts of the report that are arguably a little incomplete or unclear. For example, being industry experts, we all know the vast majority of the work is done by independent contractors. Independent contractor isn’t a term that appears in the report. Unsurprisingly, when we reach the job pay bands and employment section, it says there isn’t detailed data on the industry and compares us to the telephone call centers industry. So this report is not a must-have for court reporters, but it does have some interesting insights.

Those remarks aside, when we get to the profitability section of the report, we get to see something pretty striking. Based on their data, more than 1 in 4 court reporting companies are not profitable. Average net income as a percent of revenue for the ones that are profitable? About 9.3 percent. For the ones that are not profitable, a loss of about 9.6 percent. And a pretty chart that says as much.

I never want to see the term capital benchmarks again.

On the following page, there’s a forecast for operating expenses and industry revenue. That’s summed up in another pretty chart.

This was pre-pandemic, by the way.

If we look at the trends here, it’s pretty clear that the forecast is for expense growth to eclipse and outpace revenue growth. If that keeps up, the unprofitable companies are going to be looking at bigger losses year after year. Given all the information I have today, I surmise that the smaller court reporting companies are the more profitable ones and the bigger ones are the ones struggling. There are sure to be some outliers, like small court reporting shops that go bankrupt and leave their independent contractors unpaid. But overall, the smaller companies can’t afford to remain unprofitable for very long, so it’s probably the “big dogs” eating that 10 percent loss. If I’m right, that may also mean the push to go digital is the dying breath of companies that can’t figure out any other way forward. In February, I wrote “…we only lose if we do not compete.” That is becoming more evident with time and data. It is a great time for the stenographic reporter to open up shop and be a part of the 74%.

Speaking of data, if everybody that read this blog donated $1.50, we’d have enough money to stay ad-free for the next two decades. To all donors we’ve had to date, thank you so much, put your wallets away. To everybody else, check out this cool song from M.I.A. about taking your money.

MGR Interviewed on the Treatment of Reporters

This month I had a chance to sit down with Marc Russo of MGR Reporting. Marc’s a working reporter and business owner. We got to hit a lot of topics in this video, including Marc’s history in the field, how reporter skill relates to reporter treatment, and how scheduling ahead can help reporting firms fill their clients’ needs.

Using Marc’s words, it’s about treating reporters like people instead of numbers.

Don’t take my word for it, check out the interview here!

How We Discuss Errors and Automatic Speech Recognition

As a stenographic court reporter, I have been amazed by the strides in technology. Around 2016, I, like many of you, saw the first claims that speech recognition was as good as human ears. Automation seemed inevitable, and a few of my most beloved colleagues believed there was not a future for our amazing students. In 2019, the Testifying While Black study was published in the Language Journal, and while the study and its pilot studies showed that court reporters were twice as good at understanding the AAVE dialect as your average person, even though we have no training whatsoever in that dialect, the news media focused on the fact that we certify at 95 percent and yet only had 80 percent accuracy in the study. Some of the people involved with that study, namely Taylor Jones and Christopher Hall, introduced Culture Point, just one provider that could help make that 80 percent so much higher. In 2020, a study from Stanford showed that automatic speech recognition had a word error rate of 19 percent for “white” speakers, 35 percent for “black” speakers, and “worse” for speakers with a high dialect density. How much worse?

The .75 on the left means 75 percent. DDM is the dialect density. Even with fairly low dialect density, we’re looking at over 50 percent word error rate.

75 percent word error rate in a study done three or four years after the first claim that automatic speech recognition had 94 percent accuracy. But in all my research and all that has been written on this topic, I have not seen the following point addressed:

What Is An Error?

NCRA, many years ago, set out guidelines for what constituted an error. Word error guidelines take up about a page. Grammatical error guidelines take up about a page. What this means is that when you sit down for a steno test, you’re not being graded on your word error rate (WER), you’re being graded on your total errors. We have decades of failed certification tests where a period or comma meant a reporter wasn’t ready for the working world yet. Even where speech recognition is amazing on that WER, I’ve almost never seen appreciable grammar, punctuation, Q&A, or anything that we do to make the transcript readable. It’s so bad that advocates for the deaf, like Meryl Evans, refer to automatic speech recognition as “autocraptions.”

Unless the bench, bar, and captioning consumers want word soup to be the standard, the difference in how we describe errors needs to be injected into the discussion. Unless we want to go from a world where one reporter, perhaps paired with a scopist, completes the transcript and is accountable for it, to a world where up to eight transcribers are needed to transcribe a daily, we need to continue to push this as a consumer protection issue. Even where regulations are lacking, this is a serious and systemic issue that could shred access to justice. We have to hit every medium possible and let people know the record — in fact, every record in this country — could be in danger. The data coming out is clear. Anyone selling recording and/or automatic transcription says 90-something percent accuracy. Any time it’s actually studied? Maybe 80 percent accuracy, maybe 25; maybe they hire a real expert transcriber, or maybe they outsource all their transcription to Kenya or Manila. Perception matters; court administrators are making industry-changing decisions based on the lies or ignorance of private sector vendors.

The point is recording equipment sellers are taking a field which has been refined by stenographic court reporters to be a fairly painless process where there are clear guidelines for what happens when something goes wrong, adding lots of extra parts to it, and calling it new. We’ve been comparing our 95 percent total accuracy to their “94 percent” word error rate. In 2016, perhaps there were questions that needed answering. This is April 2021, there’s no contest, and proponents of digital recording and automatic transcription have a moral obligation to look at the facts as they are today and not what they’d like them to be.

If you are a reporter that wants more information or ideas on how to talk about these issues with clients, check out the NCRA Strong Resource Library, and Protect Your Record Project. Even reporters that have never engaged in any kind of public speaking can pick up valuable tips on how to educate the public about why stenographic reporting is necessary. Lawyers, litigants, and everyday people do not have time to go seeking this information; together, we can bring it to them.

You Need 2FA Now

Telling grown professionals what to do and how to conduct themselves online is generally not in my business plan. But I know that some of us are not 100 percent caught up with techy stuff, and I feel obligated to write this one.

2FA is a creative shortening of “two-factor authentication.” You may also hear it referred to as multi-factor authentication. No matter who you are, you’ve probably heard these words. Maybe you looked into it and you know exactly what I’m talking about. Maybe it looked too complicated and you said “not for me, thanks.” Whatever the case, I can show you in one image why you need two-factor authentication.

I can assure you, I was not attempting to log into Twitch from India.
Also, XChrisUnknownX was a really creative moniker for a 12 year old.

We’re in a hacker’s world now. Hackers will get your passwords. It’s not a matter of if, it’s a matter of when. As a matter of fact, Google now has this handy feature to show you how compromised your passwords are. Want to guess how many times hackers have gotten their hands on my password?

Excuse me! StenoIsK00L is not a weak password!

In its early days, even this blog got hacked into! 2FA prevents that every day. 2FA, at its core, means you sign in with your password, and then the service you’re logging into sends you a numeric password via text message or it sends a numeric code to an authenticator app on your phone. This numeric code changes every minute or so, so somebody who wants to log into your stuff without your permission needs to get your username, password, and be tapped into your phone OR have physical possession of your phone. It doesn’t matter if they’re trying to hack in from India, China, Beirut, or next door, they’re not getting in without very substantial access to your personal life.

PRO TIP WHERE APPLICABLE: Put 2FA for your e-mail, link that to your phone, then use 2FA and link everything else to your e-mail. The result? Every time someone tries to hack you, you get an e-mail about it.

There is one major exception to this, and the most common way that you will be hacked using 2FA: You. Hackers and scammers may send you a site by e-mail that looks legitimate. If you go to log in, they will record your login details, and they will record the numeric code that’s sent from your authenticator if you give it to them. Always double check that you’re logging into the correct site, because if you don’t, you’re going to end up giving away valuable information to people that don’t deserve to have it. So, for example, let’s say you get an e-mail saying it’s from Chase Bank. They’re going to close your account unless you act now. Don’t click anything in that e-mail. Go to your browser and type in the Chase website that you know and love. Scammers and hackers design stuff to make you feel rushed and fearful because that’s when you’re least likely to think about a minor decision like logging into a site. Any time you’re feeling rushed or fearful, take some extra time to think before you act.

That’s really it. I have countless old accounts and usernames that I opened as a kid, before the age of 2FA, and they’ve all pretty much been taken over by bots and spammers. Given the importance of our work and the transcripts we produce, we can’t afford to let our clients down and let the bad guys seize information. 2FA for most services is free. Google Authenticator is free. “Free” is a great price for peace of mind, so check if the services you use have 2FA today.

GGU Presentation & Why You Matter

I may not be on the west coast, but I know some fantastic west coast reporters.

I was invited by Ana Fatima Costa to participate in Golden Gate University’s Court Reporter Tips Every Lawyer Needs To Make The BEST Record. Ana has dedicated a great deal of time to presentations, coaching students, running internship programs. As reporters, we sometimes struggle to make connections with the bench and/or bar. Ana’s great at making those connections and definitely one of the people you want to talk to if you’re interested in bridging the gap between reporters and the bar.

We spent an hour introducing young attorneys and some reporters to core concepts such as speaking one at a time, requiring a stenographic reporter, and how providing case-specific information can assist a reporter in producing their record. Luckily for me, nearly all the heavy lifting was done by the three other panelists and experts in our field, Ana Fatima Costa, Phyllis Craver Lykken, and Leesa Durrant. Ana whipped up great presentation slides and held the whole presentation down. Phyllis talked to them a little bit about realtime conceptually. Leesa drove it all home with a realtime demonstration. It was a fantastic thing for me to be a part of, and I’m grateful I was invited to be a part of it. I’m also grateful to Professor Rachel Brockl and her team, who worked with Ana to make the event a reality. For anyone who’s curious, at some point it should be up on GGU’s Youtube.

My real takeaway is that there is so much potential for our little field to make a big impact on how we are viewed not only by the public, but also by courts, judges, and lawyers. There are thousands of reporters, which means any reporter taking just a few hours of their time per year to make a speech or presentation has incredible cumulative value. The people that we work with every day are the people who wrote to us after this presentation and said “this information really helped me understand how to help court reporters do their job.” Imagine four professionals getting to sit on camera and talk about what we know and love. You can probably imagine yourself doing it, and I hope that writing about this inspires folks to stand up and say “I can do that!” We need you. I need you so that I can stop doing presentations and go back to blogging about your presentations. And if you’re not ready, that’s okay too. But I say seek us out. Seek out any of the court reporters that put out content regularly. We want to help. We want others to meet their potential and develop skills beyond our wonderful skill of reporting.

Addendum:

The presentation may now be viewed here. The first five minutes went unrecorded due to a technical glitch.

How To Spot More Better Marketing

Count out how many times in your life you’ve seen a product in advertising that was similar to something you already do, have, or want. Did the advertiser tell you it would do more stuff? Did the advertiser tell you it was better at doing stuff than its competitors? Did the advertiser try to make you feel good and confident about a purchase in this product? February of last year, I touched on the magic of marketing. Today, we explore marketing that takes aim at us, how to identify it, and how to tell our students not to be swayed by it.

The genesis of this post is actually a marketing blitz by Transcription Outsourcing, LLC. Their ad boldly starts off “Tired of waiting for your court reporter?” They claim their prices are “up to” 50 percent less expensive than a court reporter. Guaranteed accuracy, 3 to 5 day turnaround. Among their many claims are reporters won’t format your documents, send back errors, have overseas teams that are hard to contact, take weeks. For most of us in the business, this is laughable, but we have to take ourselves out of our skin and hop into the skin of a potential client or a stenography student that has zero experience in sitting at a stenotype or desk transcribing legal proceedings. As far as identifying and helping students identify “more better marketing” I’d propose watching out for four red flags:

  1. It’s cheaper than you.
  2. It’s faster than you.
  3. You still have a job.
  4. It promises.

One, if it’s cheaper, why isn’t everybody using it? For this, you can look into your own life experience. Why don’t you buy cheaper food or a less expensive product? Usually doing something cheaper means sacrificing quality or training somewhere in the process. Two, if it’s faster, again, why isn’t everybody on it? Are there problems scaling the product, does the service provider not deliver, or are the costs of being faster too high? Three, you still have a job? Look, Company XYZ says they’re cheaper, faster, better, more better, amazing, and yet the clients are still using stenographic court reporters. This is not to say these types of services could not, through their marketing, supplant reporters. But flag three is all about acknowledging that at least some what they’re selling is hype and hope to customers. Four, it promises. That’s probably the biggest red flag you can get in this type of marketing. We saw it with Theranos, Project Natal, Solar Roadways, Waterseer, Hyperloop. People love to sell things whether they’re possible or not. They promise their solution is the solution. Theranos was going to test extraordinarily small amounts of blood and administer treatments through patches. It had a $9 billion valuation. Didn’t exist. Project Natal and Milo were going to revolutionize gaming. There were videos advertising it! Didn’t exist. Solar Roadways was going to solve America’s energy crisis by throwing out everything we know about efficient solar power generation. It raised millions of dollars. Didn’t work. Waterseer was going to solve the world’s water crisis and forgot to mention that dehumidifiers have the same basic function. The Hyperloop routinely ignores that a single break in the loop or tunnel could implode the entire thing and kill everyone in it. Promises are part of human interaction, but buying into them without reservation is dangerous and expensive. If it promises but doesn’t deliver, take note.

That’s identification in a nutshell. And at this point many are probably saying, “Chris, you’re just picking on these guys because they’re taking a swipe at court reporting. You don’t actually have anything that shows their promises aren’t the real deal!” This is where experience as a court reporter comes in. Take a look, again, at the things they said about court reporters.

  1. They won’t format your documents. Well, in some jurisdictions, we have a prescribed transcript format. Even here in New York City, where there’s virtually no such mandate for freelancers, I know many freelancers who do or have worked for agencies that work with the New York City Law Department or MTA, and both like transcripts formatted a certain way by contract. Bottom line is if you can’t find a court reporter that’ll format your document, it’s either not proper in your jurisdiction or there’s some other stenographic court reporting company that will do it.
  2. They send you back errors. I consider myself an extremely average reporter. I’m so average it took me ten years to finish off my RPR. In that ten years, I can recall exactly once that an error so egregious made its way in that it needed to be corrected and was serious. Humans make errors. News articles make errors every day. I’ve hired a lawyer that made an error. Guess what happens? It gets corrected. The world keeps turning. But, these people guarantee accuracy. I’m sure that means if a client find an error, they get the whole transcription for free, right? Right?! It promises, but there’s nothing really backing that promise. Students, ask your mentor how many mistakes they’ve made in their career. Ask them how many were serious. Mistakes are a non-issue in the context of a larger career if you learn from them.
  3. Their overseas teams are hard to contact. With the majority of court reporting firms I know and have worked with being US-based or having US-based management, I find this an odd claim. Even Israel-based Verbit, to the extent you can consider them court reporters, never came off as particularly hard to contact. Even the smallest firms I’ve ever worked with have a dialing service that makes sure the customer can get in touch with someone or leave questions or comments for the owner.
  4. They aren’t secure. I’ve found the word security to be kind of a red herring in our business. What kind of security are we talking about? SSL Certificates? Haven’t seen a reporting firm without them. Secure repositories? If you spend about sixty seconds Googling reporting firms, you’ll find security. It’s a comfort word at this point.
  5. They take weeks. Six-hour service is available. Interesting. I wonder if Transcription Outsourcing provides six-hour service on eight-hour depositions like many of my colleagues do with their dailies and their immediates. For those not in the business, for a reasonable cost, a properly trained and skilled stenographic reporter can work with their team or scopist to deliver a transcript immediately at the conclusion of a deposition. I am sure that once time travel is developed, court reporters will be the pioneers in producing transcripts before proceedings actually occur, too.

The point is to look at the millions and millions of dollars that have went into ideas that had little chance of succeeding. Look how long it takes to verify that these ideas are scams or false hope. How many people do you think are fact checking transcription and court reporting companies? Even this idea that the service is cheaper is knocked right out of reality by their own rates. Between $1.50 and $5.00 per minute. When I was in the business of freelance court reporting and transcribed audio, I charged somewhere in the realm of $100 an hour, which is about $1.67 a minute. If you take their best rate, by their own advertising, they’re at best 10 percent cheaper. They had no problem making that 10 into a 50 in their advertising. Looking at some of their other rates, you can save yourself 30 percent by switching to steno. If any of this “better, cheaper” stuff was true, why would reporters use scopists? Sorry scopists. We can just send our work into Transcription Outsourcing, LLC, take our 30 percent, and let them do all the work. Doesn’t happen. They don’t care about burning an entire bridge of potential customers because there’s no savings to be had there. They want what our clients are paying today in their pockets, and they’re hoping lawyers fall for it.

The bottom line is we’re going to be seeing more and more puffery and opinion enter our field masquerading as fact. We will be inundated with it. It’s much easier to make up falsehoods or questionable claims than it is to fact check those same claims. So when you see, for example, Protect Your Record Project fighting to raise awareness about our services, it’s a win. When you see state associations fighting to raise awareness about our services, it’s a win. When you see professionals donating their time to help encourage students and mentoring new reporters, it’s a win. When you see Open Steno, NCRA, and Project Steno advertising this field and ways to get in, it’s a win. Our strength is that there are thousands of us in the field practicing today, and so one minute from each of us amounts to a lot more time and effort than companies can spend on making up BS. Keep taking advantage of that and working together to educate. Keep hitting up social media platforms and making sure people aren’t misled about who we are and what we do. The last ten years have built an impressive online community of reporters. The next ten will be a test of getting that community’s knowledge out to clients and potential stenographers.

August Asterisks 2020 (Jobs)

One thing I’ve learned in this business is never be too predictable, and that’s why I completely skipped July. Before we get to actual jobs posts that have popped up in the last two months, we’ll get down to something for our freelance friends. and people looking to make a difference in this field. NYSCRA is promoting no fewer than three online sessions that should have a little something for everybody. First, on August 16, there will be a session with Jason Wisdom on freelance success. On August 24, Jessie Gorry and Joshua Edwards are presenting Zoom for Freelance Reporters and will be talking, as I understand it, about best practices and hardware stuff you can do to make your life easier. Finally, for those of you seeking to build some skills and confidence in making a difference, Project Steno will be hosting courses on clean writing, developing a high school program, and conducting a training course. Even more for people looking to make a difference, you should see NYSCRA President Joshua Edwards’s message in the Summer 2020 Transcript. Without further delay, in steno, if we want to change something, we hit the asterisk, right? So change the job up with August Asterisks.

Onto the jobs. First, a very special posting. Eric Allen, President of ASSCR, was kind enough to post this excerpt from what I believe to be the Chief last month. In my very first post about finding a job in New York City, I talked a little bit about Workers Compensation and how they no longer seemed to be hiring even though the application was up. So to see these very recent, current postings for Verbatim Reporter 1 in New York State is very comforting. It should be a clear message to every jobseeker and our employers that what we do has a lot of value. We will rise to the challenge of filling these positions, but we need the shotcallers to keep the demand for court reporting steady so that people are not scrambling in and out of jobs. Every former Verbatim Reporter 1 that I have ever spoken to has told me that it was an amazing job that they really liked. If you’re a reporter looking for change, this just might be your sign. Also, if any legislation comes up regarding that position, as it had in the past, I urge every reporter to support it, because you are supporting the stability and sustainability of your field. Thank you, Eric Allen, for bringing this job post to everyone’s attention.

For the first time in a while, there do not seem to be any grand jury reporter jobs open in New York City. I’m actually happy to say that because it shows that we can absolutely fill vacancies. We can beat the reporter shortage. Please, take my advice seriously when I say if you want a grand jury job with New York City, check the district attorney sites of every borough every single month, including the SNP, and check DCAS. It is very easy to miss these postings. If you need the links, they’re under the grand jury section of Get A Real Job.

The statewide provisional posting for court reporter is still up. This should surprise no one. We need stenographic court reporters. If you’re waiting for the civil service exam to come out so that you can get a permanent position, make sure you’re checking the exams page every month. You don’t want to miss out on a test that, by law, can only be held every 1 to 4 years. If you’re interested but want more information, why not reach out to Michael DeVito? His contact information is at the bottom of the posting, and it just might help you make your decision.

For the reporters out there looking for a spot in the federal judiciary, there’s plenty for you. We are looking at open spots in New York, Tennessee, Massachusetts, Illinois, Arkansas, and California. The federal judiciary jobs page remains a great resource for finding these job postings, and every reporter out there should take the time share it and familiarize themselves with it.

For those looking for a little more, NCRA’s got a jobs page too. As of today there are 87 results to flip through. Alternatively, if you’re looking to put down the machine for a little while but stay employed “in the field,” you could apply to become an NCRA Content Specialist. I’ve had the pleasure of interacting with NCRA staff before, and it’s always been really positive. I can only hope whoever fills that spot is just as positive, dedicated, and wonderful as the rest of the team. I have a lot of faith in Dave Wenhold and the current Board of Directors. There’s good leadership. There’s good staff. There are good committee volunteers. There are great general members. There’s a real chance for stenographic reporting to prove its adaptability, superiority, and technological advancement despite all the world has gone through in the last six months. Humans have known for a long, long time that when there’s a chance of something happening, it can happen. There’s even a latin phrase for it, a posse ad esse, which translates roughly to “from possibility to actuality.” So let’s take that chance, hold onto it, and make sure that our markets know stenographic reporting is here and ready to do the job.

Silence is Deafening

There was a great deal of mirth when we started this blog in the summer of 2017. Perhaps we suffered from pain or fear, but we knew that there was a need to begin preserving and sharing knowledge. We did not expect an audience. We were told, perhaps rightly, that there was no reason for readers to find us credible. There were no delusions of grandiosity. There was only a single belief and overriding directive: It was the right thing to do. We had inspiration and experience in the field. We saw the many questions our contemporaries had. We could begin to document these questions, issues, and answers or simply continue the impossible game of answering each one individually on Facebook.

Imagine ourselves in a plain white room with no windows or doors. There is only a voice every 12 hours that tells us the time. It is now 6 a.m., says the voice. We do not know if it is really 6 a.m. Nor do we know if the last time was really 6 p.m. We do know that the time in between, we are left to our thoughts, as dark or optimistic as they may be.

We saw this in the interactions across the field. One often only gets to talk about the field when one is brave enough to put their face on a question or statement. Is the time 6 a.m.? Groups dedicated to answering questions could also devolve into mocking questions and creating an environment that even the most zealous stenographers did not wish to take part in. Of course it is not 6 a.m., mocks the voice, never bothering to say what we really want to know.

Without input, our newbies and students may stumble blindly into the same pitfalls we did. Without guiding voices, they may lose the ability to tell the time. We have grown in readership not because the things we say are particularly profound, but because we say them. We do not back down from hard truths. We try to give credit when it is due. We are always open to changing our minds when a situation warrants it. We inform whenever we can, and do not assume everyone knows what we know. We feel the field would benefit from these principles, and so we share them freely, hoping to see more discussion and camaraderie grow in New York and across the country for stenographers.

We encourage more voices to join us in guiding those who need guidance. One need not any special qualification to lead. One need only disregard the voice that tells them not to speak out. Continue blogging, talking, encouraging, and answering questions. Our greatest achievement will not be the hours spent dictating the time, but the day we have built a foundation of knowledge so strong that our learners can escape the room and teach others to see the morning.

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.

Why Can’t We Discuss Rates?

Today we are going to look into a very important question about why we cannot discuss rates on many Facebook pages and association forums like NCRA or NYSCRA. For the grizzled veterans, sit this one out, you know it.

Generally when a group of competitors comes together to educate the public or propose legislation, it can be considered a trade association. In stenography, many of us are considered freelancers. This means legally we are on the same level as agencies, and often it means we are direct competitors.

Then there are the antitrust laws which more or less say that direct competitors may not collude to fix prices. This means a group of freelancers can’t come together to say we will only work for agencies if they pay us this much. They can’t say oh the page rate should be XYZ. The only potential exception to this that I know of would be unionization, something the long defunct Federation of Shorthand Reporters tried to do, and something that they still faced antitrust flak for.

So when rates discussions happen, they often drift towards (example) oh hey, stenographers should make $4 original, $1 copy, or don’t work for less than $3.75 or whatever numbers you want to put in there. The question almost always comes out: What should we charge? The answer given is often: We can’t have that discussion here. And you see that wherever here is. Freelancers who run Facebook groups don’t allow it because they don’t want to be sued, and court reporter associations don’t allow it because they don’t want to be sued. We need them to fight for us, so we need to make sure they don’t get sued. Support associations and Facebook groups by making sure they don’t get sued!

And I understand the logic, “but an association is not a competitor, it’s an association!” I understand because I had that same thought. But no, ultimately, the law does or can view these associations as collectives of competitors, and they can face stiff penalties for violating antitrust law.

That said, there are a lot of ways to get market data out there. Perhaps associations can begin to put together a legal fund to get advice on what kind of data can and can’t be gathered or dispersed by an association. Historical data seems to be okay. But how historical? Perhaps members can seek out more experienced reporters and speak to them about the history of their regional market. Perhaps we can even put together a fundraiser for seeking legal advice on this topic to learn where the lines are.

You will see I often discuss rates around this site. That’s because as best I can tell I am no longer a direct competitor. Until the day I’m facing a lawsuit, and probably even after that, I’ll be discussing rates here and allowing discussion of rates here. Anything published with my name on it is from me as an individual. But here is an important reminder: If you are a freelancer and suggesting a rate or price fixing with fellow freelancers, you may be setting yourself up to get sued. Antitrust even applies if you are trying to fix prices downwards as a group of competitors, so you can’t come together and say: Hey, X would be the best rate for the consumer, let’s make it that everywhere. It’s my belief that official reporters who have no direct competition with agencies cannot be held liable under antitrust, but keep in mind that my knowledge is always evolving and my beliefs can be wrong.

Seek out a mentor. Learn the history. Learn the market. Be empowered and don’t be afraid to ask questions. A good way to learn the market is to just ask: Hey, are there any experienced reporters I can reach out to here? Most of all: Know why we can’t discuss rates, because then you can learn how to discuss rates and market forces like inflation legally.