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When a court has evidence before it that prompts the comment “[t]he settlement agreement consists of an English and Spanish version of what hopefully is the same agreement [emphasis added],” it is apparent that the court has a problem with the way at least one of the parties has handled the conveyance of properly translated documents to the other.

In the realm of document translation services in the legal context, evidence rejected on the basis of inaccurate, questionable, or uncertified translation can be the difference between justice and an unfair result, in some cases even a travesty of justice.

In some cases, the court may allow the parties to cure the deficiencies by having the translated information certified as is, if the original translator is willing and able to do so, or have the inadequacies repaired in another way that is satisfactory to the court. In other cases, the court may decide not to give the parties this option and just exclude the evidence as unreliable.

In litigation, the parties, or even the court, can choose among several options for translation: machine translation, memory servers, computer-assisted translation (CAT), manual translation by a human. But this comment by the court in Barbosa v. National Beef Packing Co., 2014 U.S. Dist. Lexis 1444439 (D. Kansas 2014) illustrates the need for the most reliable method available.

Even if the method chosen is not the least expensive, it may be a bargain if the Court requires additional actions to certify the accuracy of the translation. In this case, in addition to the unreliable translation, the Court notes that there is no indication of who translated the document nor is there any certification that the translation is accurate.

An experienced legal translation company understands the importance of providing this information to prevent delays in the proceedings, additional expense and even possible prejudice against the parties.

Facts of this case

The parties filed a Fair Labor Standards Act (FLSA) claim against their employer based on a failure to properly calculate their hours. The parties must follow all the steps required by the Court, including in this case, accurate, certified translations, before the Court will make a final collective action determination. Both had agreed upon a FLSA Collective Action Settlement that grew out of a mediation and had submitted it to the Court for approval.

The class representatives for the plaintiffs provided signed affidavits in Spanish to support their application for certification, but the English translations were not signed. Even though the defendant employer did not object to the certification, the Court refused to grant the final certification until the plaintiffs provided the requisite supporting documents certifying the identity, skills and qualifications of the translator as well as the certification required to accompany the translated content.

The court’s comment as quoted above refers to the settlement agreement made pursuant to the mediation. A Court’s approval of an FLSA settlement agreement must be based upon its finding that the agreement is fair and equitable for all parties. Without the certification of an accurate translation, the Court is unable to make that determination.

In making its decision, the Court relied on a previous case that had similar facts. In Xavier v. Belfor, 585 F.Supp.2d 873 (E.D.La. 2008), the court would not consider affidavits for collective action certification that did not identify the translator and his or her qualifications for providing the translation nor provide any certification or declaration of the accuracy of the affidavits translated from Portuguese to English.

In most cases, one party argues with the other over whether a translation is correct. These situations can certainly create delays and more expense for one or more of the parties. In this case, however, even where both parties had agreed on an outcome, they will both now face additional expense and/or delays in procuring the appropriate certification of the translations because it wasn’t properly provided by the translator in the first place.

This isn’t the first case that has addressed the translation of collective bargaining documents. As far back as 1972, the Ninth Circuit considered the issue in Retana v. Apartment, Motel, Hotel and Elevator Operators Union, 453 F.2d 1018 (9th Cir. 1972). That case, in turn has been cited in several cases in the interim to interpret the translation question in a CBA context.

In Retana, members of a union who spoke Spanish claimed that the union had not provided crucial documents to them such as a Spanish-translated copy of their collective bargaining agreement, which was alleged to violate the union’s duty to fairly represent its members. In its decision, the Court noted that this could be a violation of the union’s duty to serve the interests of all of its members, regardless of their language. It pointed out that the effort to do so would be relatively inexpensive and easy, thus not acting in good faith of all of its members.

As demonstrated by these cases from the labor and employment areas of practice, cutting corners on translation is not efficient choice, neither in time nor in money, nor in the use of the courts’ resources. Finding and using a reputable translation service that provides quality, accurate and certified translation can not only be important to the weight of your case, but also save you procedural obstacles.

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