Or. Admin. Code § 471-070-8015

Current through Register Vol. 63, No. 12, December 1, 2024

Section 471-070-8015 - Appeals: Contested Case Proceedings Interpretation for Non-English-speaking Persons

(1) This rule applies to the department's Paid Family and Medical Leave Insurance contested case proceedings that require the services of an interpreter for a non-English-speaking person who is a party or witness.

(2) For purposes of this rule:

(a) A "non-English-speaking 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 "qualified interpreter" means a person who is readily able to communicate with the non-English-speaking person and who can orally transfer the meaning of statements to and from English and the language spoken by the non-English-speaking 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 department will comply with the applicable provisions of ORS 45.272 to 45.292.

(4) If a non-English-speaking person is a party or witness in a contested case proceeding:

(a) The administrative law judge shall appoint a qualified interpreter who is certified under ORS 45.291, if available, to interpret the proceedings to a non-English-speaking party or witness, to interpret the testimony of a non-English-speaking party or witness, or to assist the administrative law judge in performing the duties of the administrative law judge.

(b) If a qualified interpreter certified who is under ORS 45.291 is unavailable, the administrative law judge shall appoint a qualified interpreter that is not certified.

(c) A fee may not be charged to any party or witness for the appointment and services of an interpreter in a contested case proceeding to interpret testimony of a non-English-speaking party or witness, to interpret the proceedings to a non-English-speaking party or witness, or to assist the administrative law judge in performing the duties of the administrative law judge, except as provided by ORS 45.275(4) and subsection (4)(f) of this rule.

(d) 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 appointed as provided in ORS 45.275(5).

(e) If a party or witness is dissatisfied with the interpreter appointed by the administrative law judge, the party or witness may request a different interpreter as provided in ORS 45.275(4), 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. Any party may object to use of any interpreter for good cause.

(f) Fair compensation for the services of an interpreter shall be paid by the 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 that was or would have been paid to 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 non-English-speaking person and orally translate the meaning of the statements made from the English language to the language spoken by the non-English-speaking 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 the English language;

(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 a certified interpreter in Oregon in accordance with ORS 45.291 in the language to be interpreted?" If the prospective interpreter answers no, the interpreter must state or submit their qualifications on the record and must swear or affirm to make a true and impartial interpretation of the proceedings in an understandable manner using the interpreter's best skills and judgment in accordance with the standards and ethics of the interpreter profession.

(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 the foregoing questions in subsections (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 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.

(j) The administrative law judge must then administer the oath or affirmation for the interpreter: "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?" An oath or affirmation is not required for a certified interpreter in accordance with ORS 45.291.

(k) After receiving the qualified interpreter's oath or affirmation, the administrative law judge shall state: "I hereby appoint you as interpreter in this matter."

(l) On the record, the administrative law judge will then instruct any non-English-speaking party or witness 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 department has knowledge that a non-English-speaking person is in need of an interpreter, the department shall provide notice of the need for an interpreter to the Office of Administrative Hearings (OAH), which shall schedule an interpreter for that person's contested case proceeding. If the department does not have knowledge that an interpreter is needed for a non-English-speaking person, the non-English-speaking person, or that person's representative, must notify the OAH 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 administrative law judge and must be made as soon as possible, but no later than 14 calendar days before the proceeding, including the hearing or pre-hearing conference, for which the interpreter is requested.

(c) For good cause, the administrative law judge may waive the 14 calendar days advance notice.

(d) The notice to the administrative law judge must include:

(A) The name of the person needing a qualified interpreter;

(B) The person's status as a party or a witness in the proceeding; and

(C) The language and dialect, if applicable, to be interpreted.

(8) If a party is non-English-speaking, English language exhibits are to be handled as follows:

(a) If the non-English-speaking 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) of this rule, 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 subsection (8)(b) of this rule. 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 subsection (8)(b) of this rule, for a non-English-speaking party on the record, or off the record if so confirmed on the record by the non-English-speaking 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.

Or. Admin. Code § 471-070-8015

ED 15-2022, adopt filed 11/23/2022, effective 11/23/2022

Statutory/Other Authority: ORS 657B.340

Statutes/Other Implemented: ORS 657B.410