Shortage Solutions 13: Unionization

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

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

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

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

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

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

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

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

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

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

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

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

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

Addendum:

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

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.