Current through Register Vol. 63, No. 12, December 1, 2024
(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?"
(l) 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.
Stat. Auth.: ORS 657
Stats. Implemented: ORS
45.272 -
292