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The Power of Saying “No”by Danilo and Vera Nogueira | |
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We were not sure other translators would do the same. Some people sign agreements without reading them. Others believe agreements are "just a formality" and nobody will ever try to enforce them. Others, still, believe they have to accept any conditions imposed by an agency, get the job done and pray to God that nothing goes wrong. Next day we were surprised by a harsh message to Agency Ay from a colleague who refused to sign the agreement and asked to be taken off the supplier list. It took us a bit to understand why we had received it. The sender of the original message had placed the names of the addressees in the cc field, not in the bcc field, so that "reply all" answers were sent to the whole group, not only to the originator. Was that an error? Was it on purpose? We will never know. What we do know is that it triggered a chain reaction the like of which we had never seen.
We decided to write a message with basically the same tenor as our colleague's, with the intent of not leaving him as a lonely voice crying in the wilderness. During the Saturday morning, translator after translator joined the protest, refusing to sign the agreement and asking to be excluded from Agency Ay's supplier list. We stopped counting at thirty. Most of them complained bitterly that for people who take ages to pay translators, Agency Ay was demanding far too much, an opinion we heartily share. And, indeed, Agency Ay was far from a punctual payer. Some time into the day, Mr. Ona took notice of the imbroglio and wrote the group a polite message, in which he apologized for the inconvenience, asked us to "toss out" the contract, promoted Agency Ay as an important agency and placed the responsibility for late payment on the shoulders of translators incapable of preparing a proper invoice and on the increase in administrative work caused by the Agency's growth. In addition, he claimed he had failed to review the contract before it was sent out and assumed personal responsibility for the issue.
Most translators, either in messages to the group or in private messages to some of the group's members, doubted a competent businessman such as Mr. Ona would ever let an agreement like that leave his office without carefully reviewing it, but we will not dwell on that. People believed only a very small percentage of late payments was caused by administrative problems and that such problems, if any, could be cured without a new service agreement. The general idea was that Agency Ay merely wanted to impose new rules and, when cornered with the payment problem, the boss alleged that the new rules were required to cure it. Some of the invoices must have been unacceptable. But many translators, including both of us, submit flawless invoices and they are not paid on time either. PMs sometimes make mistakes, but when I write a PM asking about payment, the answer, more often than not, is "your invoice was accepted and entered in the system on such and such a day. You will be paid soon," perhaps a nice way to say "do not blame me." One PM, using a private e-mail address, for obvious security reasons, said "sorry, Mrs. Ona placed you on the 'let him wait' list."
Later on, a disgruntled former employee joined the fray, adding even more gas to the fire. The ex-employee's messages poured venom in a big way and we see no point in discussing them here except for the fact that they also touch on the "let him wait" list, confirming the confidential message received from a different person.
Eventually, the fire died out, as they all do, and we have had no news about the matter for some time. But it is the silence of scorched land.
Good agencies pay on time. We work and have worked for several of them. Bad agencies do not pay on time, and add insult to injury by feeding translators lame, childish, and unbelievable excuses. Agency Ay had the distinction of feeding us one we had not heard before: they alleged an IRS field audit had played havoc with accounts work. Perhaps it was true. But then they gave us the same excuse more than six months later. How long do you need to recover from such a visit, if you pay minimum of attention to you accounts department? Translators are expected to deliver jobs on time and expect to be paid on time. What is wrong with that? Nothing, but the fact that many agencies consider translators as sources of interest-free loans.
Who is to blame for the situation? Translators are—and nobody else. We are far too forgiving with those types. Most of us will wait for one month or more before sending a polite "reminder." And some will allow agencies to run huge overdue balances before rejecting new assignments. However, paying one day late is as unprofessional as submitting a translation one day late and we should make it very plain to agencies. A year ago or so a colleague told us he was not a grumbler, but he had faced health problems.... Now, what does that supposed to mean? The guy was embarrassed to claim money owed to him and needed an excuse! It is OUR money and we do not need excuses to claim it. Some agencies claim they cannot pay us before they collect from their clients. That is called "passing the buck." Very comfortable, but far from ethical. If they cannot collect, that is none of our business. Our contract with the agency is independent from the agency's contract with their client. Our business is providing translations on time; theirs is paying us on time. And if they do not have the working capital they need, they should borrow from a bank. We are in the business of translating, not of providing interest-free financing. In addition, tell your relationship manager at the bank that you will have to overdraw your account because an agency did not pay you on time and see how much interest the guy will charge you for the pleasure of meeting the financial needs of a valued customer. We have heard more than one translator say, "they may be late, but they always pay." That phrase fills us with anger. Do we say, "we may be late with a translation, but we always deliver it?" Again, we deliver on time and expect our clients to do the same. What is good for the goose is good for the gander. Mr. Ona, in one of his messages, said we should feel free to write him when our payment is late. Why? Does he not keep records? He should. We keep tabs on our translations; he should keep tabs on his payments. But what good would writing him do? Agency Ay pays us through Paypal and payment advices come signed by Mrs. Ona herself. Once we wrote her about a payment that was far more than overdue and she answered, three days later, with a dry "I do not handle payments—ask the accounts department". Why are we so forgiving in the matter of payments? Fear of losing the client, nothing else. And, as the late Mr. Roosevelt used to say, "We have nothing to fear but fear itself." Rejecting work from bad payers is the best medicine. Make them think. Keep the nice guys happy and don't work for the baddies. Lots of people willing to "do" a translation these days, but not that many good translators. If you are a competent professional, you are entitled to professional treatment.
In venting our outrage at bad payers, we almost forgot the contract itself. It was repudiated by Mr. Ona, that is something we cannot and will not forget. On the other hand, it should give us a good opportunity to analyze the rules that should govern our relationship with agencies and that is what we are going to do now.
Translation agencies should be the most internationally-minded of all businesses. Curious how parochial so many of them are. Before we opened a bank account in the U.S., we were often told the agency would be glad to pay into our Brazilian bank account provided we supplied them with the bank's ABA number. They also want TINs and SSNs and the rest. Europeans are not much better: they want VAT registrations and our bank's IBAN. Someone should tell them that they should do their homework before going international. The contract does not ask us to provide our SSN, but demands that we keep accounts in agreement with GAAP and keep records for future audits. First of all, why? If I agree to translate ten thousand words for Agency Ay at LSD$12 a word and send them a bill for LSD$120, what else do they care? Second, what GAAP do they mean: U.S. GAAP, Brazilian GAAP, IFAC or what? Probably U.S. In which case we would have to find another accountant, and a very expensive one, because the present accounts-wallah finds dealing with Brazilian accounting principles enough of a burden on his shoulders. In addition, in many countries a small business is allowed to keep minimal records. Switching to big-business accounting to work for an agency that does not even bother to pay us on time would be pure madness. The contract also requires service providers to comply with a host of U.S. laws, regulations, decrees, acts, edicts, rulings, commandments, directives, and probably a few ukases to boot. Things we have never heard of and may very well conflict with Brazilian laws. We know about the Sarbanes-Oxley Act, of course, and know that we have to comply with certain requirements before we can sell to U.S. companies, but we have a slight suspicion that the lawyers simply imposed us all the requirements applicable to domestic U.S. companies, not those applicable to foreign subcontractors working for U.S. companies. In any case, we would be grateful for a copy of such things, in "plain English," please. We cannot comply with requirements we do not know or understand. And we are not going to hire an international lawyer to sort things out for us. Not with the fees they pay us. And late, too. The matter is rendered more complicated because the cover message stated that the contract had to be signed as it was. No negotiation allowed.
Translators who operate as "corporations", even if as a "one-man corporation," are required to keep over ten million dollars in insurance cover. That is too ridiculous to require comment. On to the next point. Let's not waste our time. And they paid a lawyer to write that. On time, we expect.
One of the provisions of the contract says that if Client demands an immediate refund of amounts paid for the deficient services, Supplier will promptly refund to Agency Ay any amount paid by Agency Ay for such deficient services. This, we believe, is the absurd of absurds. Agencies should not be required to pay for bad jobs, but, on the other hand, they should have acceptance standards and once a job is accepted by the agency, our responsibility ceases. We cannot accept a deal that subjects us to a "money back" guarantee for several reasons. Suffice it to say—and you know the story as well as we do—that we are often irresponsibly accused of having made mistakes by people who should be digging trenches instead of reviewing translations. A good agency fights for its translators, instead of simply passing the buck. By the way, just by the way, how can we be sure that the final client demanded its money back, if we are not allowed to have contacts with the end guys?
One of the most interesting provisions of the agreement says that during the term of any Assignment under this Agreement and at any time thereafter, Agency Ay shall have the right to offer employment to, to hire, or to otherwise contract for the services of any Supplier Personnel who has provided services under one or more Assignments for a total of three (3) months without the payment of any fee or charge. Please, read this to yourself, very slowly and carefully and let us know if you like it. It means that, if you happen to run a translation company yourself and have put your best translator to work on an Agency Ay assignment, they will have the right to hire the guy away from your company for three months without paying you a cent. Now, ask them whether you can work for one of their clients for three months without paying their commission.
There was no provision in the agreement to deal with late payment.
That is the question one of the participants of the group posed when things got white hot. The answer is no, we do not. On the other hand, we do not want to be broken by Agency Ay or any other agency for that matter nor do we feel we have to finance them.
We could go on for several thousand words; the contract itself is an 8,000-word monstrosity and a lawyer would probably find many more issues to comment on. But the above will have to suffice. The contract was ineptly written. Whoever put it together does not understand the first thing about translation or international business. Or, perhaps, understands a lot, who knows. However, under law, it is a valid contract. That is, try to challenge it on the grounds it is crazy and the judge will say you should have seen that before signing. It is a fact that Mr. Ona himself repudiated the agreement. This cannot be forgotten and will not be. He also recognized the contract was absurd, acknowledged that he had failed to read it before it was sent out, apologized for the error and accepted responsibility for everything. Good for him. However, even assuming he was speaking God's truth, which a few people doubted, would he have repudiated the little monster if we had not complained as loud as we did? And, if we had signed, would Agency Ay, or anybody else for that matter, fail to enforce any of the provisions if the opportunity presented itself?
Before we rest our case, we have three recommendations. First, read agreements very carefully before you sign them and refuse to sign if there is something that looks unacceptable. Never accept the "it is a mere formality" thing. There is no such thing as a mere formality. Second, never abuse a PM because you have not been paid when due. Most PMs would like to see us paid as soon as they had ascertained the job was in good order. Third, keep in mind not all agencies are created equal. We work for several good ones; they treat us well and pay us punctually. Don't make the mistake of treating all agencies as if they were buccaneers; they are not. Lots of nice guys out there in agencydom. |
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t was pure drama. The names you will see are not real, but the story did happen and some of you may have been there or know someone who was. The dramatis personae include Mr. Ona, who is a well-known interpreter and the owner of Agency Ay, a prestigious U.S. translation agency; an unnamed member of Agency Ay's staff; a former member of the agency's staff, and over 30 translators—including the authors of the present article.