OAR 471-040-0007: Contested Case Proceedings Interpretation for Limited English Proficient Persons

(1) This rule applies to the Employment Department's Unemployment Insurance contested case proceedings that require the services of an interpreter for a limited English proficient person who is a party or witness. (2) For purposes of this rule: (a) A "limited English proficient person" means a person who, by reason of place of birth, national origin, or culture, speaks a language other than English and does not speak English at all or with adequate ability to communicate effectively in the proceedings; (b) A "certified interpreter" means an interpreter certified under ORS 45.291; and (c) A "qualified interpreter" means a person who is not certified under ORS 45.291, but is readily able to communicate with the limited English proficient person and who can orally transfer the meaning of statements to and from English and the language spoken by the limited English proficient person. A qualified interpreter must be able to interpret in a manner that conserves the meaning, tone, level, style and register of the original statement, without additions or omissions. A qualified interpreter does not include any person who is unable to interpret the dialect, slang or specialized vocabulary used by the party or witness. (3) In conducting contested case proceedings under this rule, the Employment Department will comply with the applicable provisions of ORS 45.272 to 45.292. (4) If a limited English proficient person is a party or witness in a contested case aproceeding: (a) The administrative law judge shall appoint a certified interpreter, if available, to interpret the proceedings to a limited English proficient party, to interpret the testimony of a limited English proficient party or witness, or to assist the administrative law judge in performing the duties of the administrative law judge. (b) If a certified interpreter is unavailable, the administrative law judge shall appoint a qualified interpreter. (c) Notwithstanding subsection (4)(a) of this rule, upon the request of a party or witness, the administrative law judge may appoint a qualified interpreter rather than a certified interpreter if the administrative law judge deems it appropriate under the circumstances. (d) No fee shall be charged to any party or witness for the appointment and services of an interpreter in a contested case proceeding except as provided by ORS 45.275(5) and subsection (4)(g) of this rule. (e) The administrative law judge may not appoint any person as an interpreter if the person has a conflict of interest with any of the parties or witnesses, is unable to understand or cannot be understood by the administrative law judge, party or witness, or is unable to work cooperatively with the administrative law judge, the person in need of an interpreter or the representative for that person. If a party or witness is dissatisfied with the interpreter selected by the administrative law judge, a substitute interpreter may be used as provided in ORS 45.275(5). (f) If a party or witness is dissatisfied with the interpreter selected by the administrative law judge, the party or witness may use any certified interpreter, except that good cause must be shown for a substitution if the substitution will delay the proceeding. Good cause exists when information in the record establishes that the party or witness would be unable to effectively communicate without the assistance of a substitute interpreter. (g) Fair compensation for the services of an interpreter shall be paid by the Employment Department except, when a substitute interpreter is used for reasons other than good cause, the party requesting the substitute shall bear any additional costs beyond the amount required to pay the original interpreter. (5) In determining if a person is a qualified interpreter, the administrative law judge shall consider the following factors to ascertain whether the individual will be able to readily communicate with the limited English proficient person and orally translate the meaning of the statements made from English to the language spoken by the limited English proficient person: (a) The person's native language; (b) The number of years of education the person has in the language to be interpreted and the English language; (c) The number of years of specialized training that has provided the person with the opportunity to learn and use the language to be interpreted and English; (d) The amount of time the person has spent in countries where the language to be interpreted is the primary language; (e) The number of years the person has spent acquiring the ability to read or write, or both, the language to be interpreted and the English language; (f) The person's previous experience as an interpreter; (g) The person's ability to interpret in a manner that conserves the meaning, tone, level, style, and register of the original statement, without additions or omissions; (h) The person's ability to interpret the dialect, slang or specialized vocabulary of the original statement; and (i) The person's knowledge of the Oregon Code of Professional Responsibility for Interpreters in Oregon Courts. (6) In appointing an interpreter under this rule, the administrative law judge shall use a procedure and ask questions or make statements on the record substantially similar to the following: (a) "Please state your name for the record." (b) "Are you currently certified as an interpreter in Oregon in accordance with ORS 45.291 (in the language to be interpreted)?" (c) "Is there any situation or relationship, including knowing any parties or witnesses in this case, that may be perceived by me, any of the parties, or any witnesses as a bias or conflict of interest in or with the parties or witnesses in this case?" If the prospective interpreter answers affirmatively, the administrative law judge shall inquire further to ascertain whether any disqualifying bias or conflict of interest exists with any of the parties or witnesses. (d) "Are you able to understand me, the parties, and the witnesses in this proceeding?” (e) "In your opinion, are the parties and witnesses able to understand you?" (f) Directed at the parties and witnesses requiring the assistance of an interpreter: "Are you able to understand the interpreter?" (g) "Are you able to work cooperatively with me and the person in need of an interpreter or counsel for that person?" (h) If foregoing questions (b), (d), (e), (f), and (g) are answered affirmatively and the administrative law judge is satisfied that the prospective interpreter has no bias or conflict of interest under question (c), then the administrative law judge shall state: "I hereby appoint you as interpreter in this matter." (i) If the prospective interpreter is not certified under ORS 45.291, then the administrative law judge shall proceed to determine whether the person is a qualified interpreter, using the criteria set forth in Section 5 of this rule. If a written statement of the prospective interpreter's qualifications is available, the administrative law judge shall enter that statement into the record. If a written statement of the prospective interpreter's qualifications is not available, the administrative law judge shall require the prospective interpreter to state his or her qualifications on the record. If the written statement is incomplete, or if the administrative law judge or a party questions the interpreter’s qualifications, the administrative law judge shall require the prospective interpreter to supplement his or her written statement of qualifications by providing additional information regarding the prospective interpreter's qualifications on the record. (j) If the administrative law judge determines that the person is a qualified interpreter, then the administrative law judge shall state on the record, "Based on your knowledge, skills, training, or education, I find that you are qualified to act as an interpreter in this matter." If the administrative law judge is not satisfied that the person is capable of serving as a qualified interpreter, the administrative law judge shall not appoint the person to serve in such capacity. (k) The administrative law judge will then administer the oath or affirmation for interpreters who are not certified under ORS 45.291: "Under penalty of perjury, do you (swear) (affirm) that you will make a true and impartial interpretation of the proceedings in an understandable manner, using your best skills and judgment in accordance with the standards and ethics of the interpreter profession?" (1) After receiving the qualified interpreter's oath or affirmation, the administrative law judge shall state: "I hereby appoint you as interpreter in this matter." (m) On the record, the administrative law judge will then instruct any limited English proficient party or witnesses as follows: "If, at any time during the hearing, you do not understand something, or believe there are problems with the interpretation, you should indicate by interrupting and calling this to my attention." (7) If the Employment Department is on notice that a limited English proficient person is in need of an interpreter, the Employment Department shall provide notice of the need for an interpreter to the Office of Administrative Hearings which shall schedule that person's contested case proceeding for which notice has been provided with an interpreter. If the Employment Department is not on notice that an interpreter is needed for a limited English proficient person, the limited English proficient person, or that person's representative, must notify the Office of Administrative Hearings of such need in advance of the contested case proceeding for which the interpreter is requested. (a) If, at the time of or during the contested case proceeding, it becomes apparent that an interpreter is necessary for a full and fair inquiry, the administrative law judge shall arrange for an interpreter and may postpone the proceeding if necessary. (b) The request for an interpreter may be made orally or in writing to the Office of Administrative Hearings. At the request of the Office of Administrative Hearings such notice may include: (A) The name of the person needing an interpreter; (B) Whether the person needing an interpreter is a party or witness in the proceeding; and (C) The language to be interpreted. (8) If a party is limited English proficient, English language exhibits are to be handled as follows: (a) If the limited English proficient party confirms on the record that an interpreter already has interpreted an English language document for the party, the administrative law judge may receive the document into evidence without further interpretation of the document, unless necessary to assist a witness to provide relevant testimony. (b) If the administrative law judge intends to receive into evidence an English language document that has not been previously interpreted under subsection (8)(a), the administrative law judge shall read the document and allow for contemporaneous interpretation. If the document is lengthy, the administrative law judge need not read into the record clearly irrelevant portions of the document, provided however that the administrative law judge shall summarize the remaining content of the document on the record. (c) If, at the time of the proceeding, the administrative law judge does not rule on the admissibility of an offered English language document, then the administrative law judge shall read the offered document into the record and allow contemporaneous interpretation, subject to the exception in Section (b). The interpreter shall interpret all such offered documents or portions of such documents read into the record. (d) If an offer of proof for excluded evidence includes an English language document, the interpreter shall interpret the document, subject to the exception in Section (b), for a limited English proficient party on the record, or off the record if so confirmed on the record by the limited English proficient party. (e) Offered English language documents that the administrative law judge decides to exclude, in whole or in part, as irrelevant, immaterial, or unduly repetitious do not need to be interpreted. The administrative law judge shall orally summarize the contents of such offered but excluded documents, and the interpreter shall interpret that summary. (9) A party may offer non-English language documents. If such a document is received into evidence, it shall be translated in writing or read into the record in English by the interpreter. Although the non-English language document will be part of the record, the English version of the document shall be the evidence in the case.