As debt collectors began to wonder whether they'd be able to comply with New York City Department of Consumer Affair's (DCA) new Limited English Proficiency rule, the regulator has finally posted the final piece of the puzzle just as its enforcement grace period against debt collectors was about to expire. Yesterday, DCA at long last posted the glossary of commonly-used collection terms and their translations.
Among several requirements, the new rule requires debt collectors to provide a link to DCA's website -- www.nyc.gov/dca -- and inform consumers that they can find such a glossary there.
The big concern for debt collectors was whether the glossary would be posted at all; and, until it was posted, there was a concern that it was impossible to properly comply with the rule and protect against legal risk. A debt collector could include the link to the website to comply with the rule, but if the glossary was not present, then it provided legal exposure to debt collectors for potentially providing misleading or deceptive communications to consumers.
On the other hand, a debt collector might have decided to forego providing the link, thus not complying with the rule, in order to protect against the legal exposure of misleading or deceptive communications in what is one of the most litigious jurisdictions for FDCPA claims.
Thankfully, debt collectors don't have to pick and choose. Now that the glossary is available, the loop is closed.
Some things to keep in mind:
1) The regulation doesn't say to provide the link of the glossary. Per the reg, your New York City letters only need to have the following:
(viii) a statement that a translation and description of commonly-used debt collection terms is available in multiple languages on the Department’s website, www.nyc.gov/dca.
However, it is not immediately apparent, at least to this least sophisticated consumer, where the glossary is from the link above in the regulation. Safety says: follow the regulation as written, because sometimes links change and if you use the glossary link itself, rather than the www.nyc.gov/dca link in the regulation, and then NYC DCA changes that link, you might find yourself in dutch with the City.
2) Per the regulation, you are not required to provide communications in anything other than English; and if you only provide notices and communications in English, that needs to be mentioned in your disclosure on your letters and on your site. If you do offer written and oral communications in other languages, though, those languages need to be listed in the letter. And if you have the ability to translate written documents or handle other languages in a phone call, that needs to be made explicit to consumers, too.
3) Also per the regulation, that link to www.nyc.gov/dca also needs to be on your website. It can be on a consumer-reachable disclosures page. You will also have to list the languages your agency supports on your site, too.
While DCA was likely well-meaning and genuine in its attempt to help consumers who may need language services, the procedure of how this rule came about has been poorly managed and frustrating for collectors.
First, DCA announced the rule and held public hearings in the Spring while all companies—including debt collectors—were in the middle of the COVID-19 pandemic scramble in an unprecedented effort to transition to a remote workforce while at the same time being available to help consumers who were sending inbound phone calls to debt collectors at unprecedented rates. As one would suspect, this rule missed everyone's radar—there were zero comments received from industry or consumer advocates on the rule.
Then, DCA provided a grace period for enforcement because, once the dust settled and industry had a chance to review the rule, there were many questions left unanswered about how, exactly, to comply with the rule. In response to this, DCA released an FAQ document and annual report template.
However, even that was not complete, as there was one big piece of the puzzle missing: the glossary of commonly-used collection terms and their translations. DCA announced an extension to their grace period so they could get this up, which we now see was done mere days before debt collectors are expected to fully comply with the new rule. Talk about a nail-biter.
Again, the industry can appreciate DCA's intent behind the rule. There are many consumers who would greatly benefit from language access services. However well-meaning the intent was, the way this rule came about was a mess and now we wait and see whether it will have any unintended consequences.