Is a refund due in this situation or a time penalty?

[4c78f4d5]

So here's my question:

A freelancer has been hired to complete a functioning website and before being hired (as well as several times during the course of the contract), there are multiple files provided outlining the expectations; including 2 similar / competitor websites to use as examples. The freelancer proposes a contract and states the price - the site is to be completed in 4 weeks with 25% of the total paid up front, 25% halfway thru and the remaining balance upon completion. The freelancer sends the request to begin work and is paid the 25% and is expected to begin working. (Noteworthy note: the freelancer also proposed the site being completed in just 3 weeks for an additional amount but the client, trying to be realistic, declined the offer and decided to work within the 4 week timeline instead.)

2 weeks into the project, the freelancer sends the request for the other 25% (total now paid is 50%) and sends over some info that would indeed show some completed work. The expectation for the client is that in 2 more weeks, a fully functioning website will be available. However, the freelancer has a family emergency and is delayed by 1 full week. Understandable; things happen.

2 more weeks pass (now 5 weeks into the contract due to the family situation) and the freelancer only replies occasionally when previously, there was daily communication. They state they are not receiving notifications from UpWork so they do not know when they are receiving messages.

Week 6 approaches and the freelancer sets up a phone / video call with the client to discuss the website, go over any changes, etc. The date and time comes and goes with no phone call from the freelancer. NO communication whatsoever. The freelancer is now 2 weeks over the deadline for the website being completed, didn't keep an appointment to call and isn't responding at all to messages (but has been paid half of the agreed funds because again, some work has been done). Frustrated at this point, client sends a nastygram because there is an investment here; in the website, inventory for the website, photographers to take the pics for the inventory that is to be sold on the website, setting up ads and events that will have banners with the website and email address so that customers can contact the clients' business for more business. The client has told the freelancer multiple times that the website HAS to be completed and it is now an urgent matter as the first event is in just 3 more days.

Freelancer replies and says they are sorry for the delay and the missed appointment but they were involved an accident. That is why the phone call appointment was broken but they had no family or backup person who could reply to messages for them because they were doing other things.

By this time, the client has reached out to UpWork customer support and requested they try to contact the freelancer because they can't get a reply and they don't reply to UpWork, either. They limit the freelancers account and at that point, the freelancer makes contact with the client and says they realize they are running behind and they feel it's just best to end the contract and move on; they wish the client the best and hope their business is successful. Keep in mind, the freelancer is proposing to end the contract WITHOUT any sort of refund of the 50% that has been paid! They also request that the client contact UpWork and see if they can help remove the limit on their account. Their account has been limited because they failed to reply to UpWork when they were first contacted. After some back and forth messages, they agree the freelancer will work on the website as they are 100% committed to making this work and completing the contract as agreed (which is now 3 weeks overdue but, whatever).

The client is trying hard - really trying - to be patient and understanding. A death in the family can't be helped; a car accident again, can't be helped. BUT, after agreeing they will work together to complete the contract and website, the freelancer sets up a 2nd phone / video call to go over the website, expected changes, etc.  Again, doesn't call - instead they send a message 17 minutes after the scheduled time to call and said they decided to take their dog to the vet for a routine check up. Seriously?

So, now, what would YOU do in this situation? 7 weeks wasted, no website, 2 missed phone call appointments, events coming up, over 500 products to be listed on the website and can't even get on the website because it's not finished!

The website isn't just for selling trinkets or fossils, it's a legitimate business - a real company that pay taxes, has employees, has been losing revenue because the previous website expired on week 5 of the contract and wasn't renewed and has 7 weeks of wasted time because a website isn't completed. It is how a family pays their bills, how a daugher is going to college, how the family eats and is able to keep the lights on. This is a business, period. 

At this point, there is a harsh reality that the freelancer will not complete the website even thou they say they want to do it. What are YOUR thoughts???

Is the client entitled to a full or partial refund of what they have paid because the freelancer is well over their contracted timeline and there is not a functioning website? Not to mention the client now has to start all over with trying to find a new developer to build their site from the ground up - again so it's going to be at least another 4 weeks.

If the freelancer DOES finally complete the website, are they entitled to the full amount of their contract; the remaining 50% or should there be a penalty deducted for the delays and problems?

Should the freelancer actually follow through and complete the website, should the client be allowed to use the website for the number of weeks equal to the delayed weeks and be able to generate their lost revenue before paying the freelancer? 

Should the freelancer be allowed to keep the 50% payment and move on to a new job and the client just lose their money and still have to hire another developer, wait on their site, pay more money and lose more money? 

Other suggestions? 

I am definitely open to opinions in this unfortunate situation.

Thank you for taking the time to read this and offer your thoughts and opinions here. This is quite a big mess to say the least!

[odinsql]

Yes the client is due a refund and that is what upwork is supposed to help with when things go wrong. 

What  you haven't mentioned is what  the budget was for the site? Was it unrealistically low? Is this yet another case of a client  getting what they've paid for?  

"When you pay peanuts you get monkeys"

[4c78f4d5]

Thank you for your reply and assistance. Here is the situation, this is my wife's website and obviously we are not computer genuises or we wouldn't be here in the first place. We had absolutely zero knowledge of the cost to build a website that she wanted (the one that expired was a drag and drop but she needed more functions and wanted to update it) but we had no idea where websites begin or cost.

Our budget that was placed in our initial request was $2500 however the request also stated that budget was negotiable, depending on feedback, experience, etc. The total cost for the site that was agreed upon in the contract was $3000 and was placed on a fixed price contract. $1500 has been paid because we can see the developers site, click on a few buttons and see the home page but nothing close to being finished. 

I would have gladly paid more than that however I did look around and reach out to some other forums and it seemed that $2000-$3000 was the range for most developers so that is what I based it on.

[bobafett999]

Yes Jonathon, if your story is true then you were scammed. 

I guess one of the mistakes you made was to let the first website expire.  If I were you I would reach out to the drag-drop builder and see if they would be willing to restore the site for you.  You will have at least something.

I will not comment on the price as I have no idea about the details. 

But here are some pointers for you to keep in mind.

1. Ask to see the developer's personal website.  The links and other garbage they send you that I did this or that could be fake. 

2. Another way is that if some one really claims to be a superstar than some of the portfolio sites would have a back links to their home site.

3. If you do not have good background, may be hiring a project manager might be appropriate.

4. You didn't mention the location of the freelancer, but I would guess that it is non-US.  There is some benefit of hiring from a US based freelancer. 

I am sure thre are many experts who could advise you some more.  I am sorry that the experience did not work out for you.

[4c78f4d5]

I swear this is a true story - I have printed 217 pages of messages to prove it because every single exchange has been done thru the UW message platform so I can guarantee I am telling the whole truth.

I am going to my attorney's office in the morning and taking all of the messages with me as well as the credit card receipts where I paid for half of the work already. I have also been visiting the developer site he created for us multiple times every day and I have printed all of that off as well with date and time stamps. All in all there are 231 pages printed, including the site pages.

Thanks for the advice; I will reach out to the other website host tomorrow and see if the site is still in their system and how we can reactivate it. I appreciate that info - unfortunately in these situations, people do not think clearly because of the frustation. 

To reply to your pointers (which are greatly appreciate by the way):

1. That was a mistake on my part; I did not ask for the developers personal website because he had 12 positive reviews, $6000 in jobs completed and some samples of completed websites on his cover letter. I felt I had selected a competient freelancer based off of this information. He also had credentials for his stuides and indicated that he has successfully been running a software company for several years. I did try to look up a website with the information he provided but to no avail.

*EDITED TO ADD: after replying to this message, I did use a different browser and found the developers website. It does seem to be on the up and up - there are no obvious red flags on the website that I can see. I am just horribly confused as to what he has to gain by stringing me along and not giving me the website that I was promised? 

2. Again, I am not educated enough in computers to have asked this but he did have sites on his cover letter that seem legitimate.

3. I will look into a project manager! Thank you for that tip!

4. His stated location and the location that shows up during messages on UW platform is Indiana, USA - the one thing that I did make sure of was that I did NOT work with anyone overseas 😉 

I am just really frustrated because he continues to portray that he wants to complete this website but it's not being done and I don't know why? I have the beginning of a site and I can look at that but for some reason he just will not finish this site. He said he was fine ending the contract yesterday and 10 minutes later said he was committed to finishing the site! Doesn't make sense to me. 

Hopefully my attorney can help me as I'm just really at a loss here. Who makes an appointment with a client and then, at that time, takes their dog in for a check up? At 6:15 in the evening? Something's just really not right here but we will be ok.

I have reached out to UW and notified them of the situation so hopefully this will not happen to anyone else 🙂 

[bobafett999]

---

@Jonathon V wrote:

I swear this is a true story - I have printed 217 pages of messages to prove it because every single exchange has been done thru the UW message platform so I can guarantee I am telling the whole truth.

...... so hopefully this will not happen to anyone else 🙂 

---

 I believe you, and you are wishing for a miracle. 

Upwork is a wild frontier.  In most cases the habitats behave normally and the outcome is happy.  However, there are stories from buyers as well as sellers that would indicate that some of the creatures have their moral compass pointing in wrong direction or may be the needle is missing.

[4c78f4d5]

Thank you and I sincerely hope that NO other person has to go thru this mess that we have been thru the past 7 weeks! What a nightmare!

I can say this with absolute certainty; we will NEVER hire anyone else like this. On UW or anywhere else! If we can't physically see the person or speak to them and hear their voice, we will NOT give them a penny and we definitely won't be guilty of paying without a solid, finished product. 

Thanks for your help 🙂 

[0809c161]

"moral compass pointing in the wrong direction or may be the needle is missing."

🤣🤣 love it, very well worded 🙂

[AveryO]

Hi Jonathon, 

I'm sorry to know about your experience. I can see that the case is currently under mediation. I would suggest that you stop working with the freelancer in the meantime until after the mediation is over, and the team has given a recommendation on the issue. Please continue communicating with the team via your open mediation ticket so that this can be resolved. 

[4c78f4d5]

Thank you Avery 🙂 We sincerely appreciate the help of UW during this time.

I did have my wife message him and let him know that she is not allowed to contact him again. 

I am meeting with our attorney in the morning and hopefully this will be resolved quickly; I have made the decision that he is not the right developer for us but it is not fair for him to keep our money just for showing us a home page to a website after 7 weeks of working. I posted here in hopes of soliciting other opinions to the situation and to see if I am out of line requesting a refund or if he should be paid. 

This is definitely a situation that I hope no one else ends up in because it's very stressful, to say the least.

We appreciate your help and advice and we are going to do exactly as you suggested!

[prestonhunter]

Successful websites are not built using refunds or time penalties. The sooner you can put those things out of your mind, the better.

Sucessful clients work with freelancers who are top producers of the work that they need done, and they quickly stop working with the poor performers.

Refund thinking is a recipe for cost overruns and project failure.

[4c78f4d5]

Thank you for your opinion. Unfortunately it does seem we made a mistake in hiring this particular freelancer however his profile seemed to indicate that he was qualified and we provided him with multiple examples and documents prior to accepting his contract.

I respectfully disagee with putting this out of my mind as he should be knowledgeable enough about his field to know approximately how long a website will take to build. We have been extremely patient with him and tried to be understanding. Completion dates are estimates and I fully understand that however promising that work will be delivered by certain dates and failing to respond or taking the dog to the vet for routine check ups when you’re supposed to be working on a website and talking with the client is not acceptable; especially when the contract is sitting at 3 weeks over due.

I feel we are being reasonable here and justified at this point and I do not feel that requesting a refund is the cause of the overrun timing nor the failure of this freelancer. But I do appreciate your time and opinion.

[yitwail]

Jonathon, the freelancer claimed a family emergency, then an accident, then taking a dog to the vet. These things could have all actually taken place, but if that happened to me as a freelancer, I would find some way to immediately notify the client the reason for the delay, and not wait until the client contacted me to provide an explanation. A moderator mentioned mediation, so in your position, I would wait and see what transpires. Since you approved 2 milestones, I doubt you'll get all the money back, but I hope you will recover a fair amount. If mediation is unsuccessful, you should also consider requesting arbitration. And regardless of what happens, unless you receive a full refund, please leave the freelancer appropriate negative feedback to prevent other clients from being taken advantage of in the same way.

[prestonhunter]

Jonathan:

You seem to care more about this freelancer than you do about your website.

Who cares about the freelancer? I don't care if he had a family emergency or if he went skiing in Aspen. It doesn't matter.

If I'm managing a project to create a website, I work with the people who deliver results and I stop working with the people who don't. That's the only way to really get things done.

It sounds like you put all your eggs in one basket. Your project manager should be working with multiple freelancers, asking them for discrete deliverables, and continuing to work only with the freelancers who provide work on time and provide the best value.

[4c78f4d5]

Hi Preston! Unfortunately, where I am from, people tend to be more laid back I suppose and I try to be an understanding, compassionate person who gives people a fair chance, or two...

We desperately care about the website and we made it more than clear BEFORE he was hired that it had to be completed (meaning up and running, functioning, working, etc.) absolutely NO later than March 15th and he agreed. The contract that he wrote and proposed stated completion date would be March 12th and he even offered to complete it a week sooner if we paid more money. 

Unfortunately, we did not get an opportunity to work with you on building the site for us; you seem to be very passionate about not only your work but also your dedication to your customers. That is a rare find these days.

We have no project manager however we are meeting with a local person later this evening who may be able to help us 🙂 

Thank you for your advice and we appreciate you reaching out.

[4c78f4d5]

Thank you for your opinion, John.

It is almost like playing a Bingo card. Unfortunately, family emergencies come up and I get that. My own mother passed away last year, unexpectedly, but I still had to continue to live. However, the freelancer made an appointment to call and did not because he decided to take the dog in at that time for a routine check up instead. In actuality, he should have managed his time more appropriately and been working on my website and making the promised phone calls. You are much like myself as in with my own clients, if I am delayed for any reason, I reach out to them or if I am not able to, I have a backup plan in place to make sure they are aware of the situation. 

Yes, the milestones were approved because in the beginning, he did work on the website. The home page and some features are visible (although no links actually work) so my understanding was that the website was halfway done thus he was paid half so far. But the contract did not state he would half build a website. It stated he would build a website and it doesn't state that he can get it half done and then just leave us hanging. 

We will see what the mediator ends up doing for us and we will just go from there. I appreicate the arbitration suggestion.

Even with a full refund, he will be receiving the feedback he deserves because this was an avoidable situation if he would have just done the work he promised to do. Lack of planning on his part does not indicate an emergency on mine 😉 

Thanks again for your opinion and advice. I appreciate you taking the time to reach out and offer some valuable information. 

[petra_r]

---

@Jonathon V wrote:

Even with a full refund, he will be receiving the feedback he deserves

---

 With a full refund no feedback will show... Only contracts with money paid show on the profile.

Furthermore, if the freelancer has withdrawn the money (most likely) there is little to nothing that Upwork can do to magic it back unless the freelancer repays it. No mediation and no arbitration can do that, you'd have to enforce any ruling yourself (at your own cost)

All Upwork can do is suspend his account.

That's it.

[4c78f4d5]

Thank you for that information; I was not aware exactly how the feedback process works. 

He obviously does not do the right thing so I understand he most likely will not repay the funds. However, hopefully this will prevent him from being able to do this to anyone else in the future (at least via the UW platform). 

Thank you for your advice. 

[kat303]

---

@Petra R wrote:

---

@Jonathon V wrote:

Even with a full refund, he will be receiving the feedback he deserves

---

 With a full refund no feedback will show... Only contracts with money paid show on the profile.

Furthermore, if the freelancer has withdrawn the money (most likely) there is little to nothing that Upwork can do to magic it back unless the freelancer repays it. No mediation and no arbitration can do that, you'd have to enforce any ruling yourself (at your own cost)

All Upwork can do is suspend his account.

That's it.

 Petra - can you clarify the above underlined statement ?

https://community.upwork.com/t5/Freelancers/Why-would-Upwork-encourage-arbitration-on-a-closed-contr...

Seems like a client CAN file for arbitration even if there's no funds in escrow. And if the client does that, the freelancer has only 3 options and MUST choose one of them.

1. don't pay the fee and have their account suspended

2 refund the money they withdrew from escrow

3. pay the fee and go through arbitration (if it's determined that the client is intitled to a refund they the freelancer has to pay them back.

---

[petra_r]

---

@Kathy T wrote:

---

Furthermore, if the freelancer has withdrawn the money (most likely) there is little to nothing that Upwork can do to magic it back unless the freelancer repays it. No mediation and no arbitration can do that, you'd have to enforce any ruling yourself (at your own cost)

All Upwork can do is suspend his account.

That's it.

 Petra - can you clarify the above underlined statement ?

https://community.upwork.com/t5/Freelancers/Why-would-Upwork-encourage-arbitration-on-a-closed-contr...

Seems like a client CAN file for arbitration even if there's no funds in escrow. And if the client does that, the freelancer has only 3 options and MUST choose one of them.

1. don't pay the fee and have their account suspended

2 refund the money they withdrew from escrow

3. pay the fee and go through arbitration (if it's determined that the client is intitled to a refund they the freelancer has to pay them back.

---

---

 Yes, the client can pay for arbitration.

If the freelancer does not pay for arbitration Upwork suspends their account

How does that get the client the money back? (Hint: It doesn't!)

Even if the client and freelancer go to arbitration, and the client wins, the client would still have to "collect" the money, which is expensive by itself.

That is why I said :

"All Upwork can do is suspend his account.

That's it."

[kat303]

Even if the client and freelancer go to arbitration, and the client wins, the client would still have to "collect" the money, which is expensive by itself

I'm probably wrong in this assumption, but I would think, if it's determined that the client should get a refund, it would work somewhat like a charge back. Upwork would take the amount owed to the client, from any future earnings by the freelancer.  

Having said that, I doubt that this client will get a FULL refund. By his own admission, the freelancer did Some work for the first milestone. I would think, if the client gets any refund it would probably be half of what was paid for the 1st milestone (for the `1/2 of the scope of work the freelancer did for that milestone.)

[4c78f4d5]

Just an update for those interested; I'll try to keep it brief however I have served 22 years for the US Army; Department of Defense and in my job, I have to write reports on defense equipment. Unfortunately this amount of service time has caused me to be an extremely detailed person and we all know what they say about creatures of habit; I guess I am just programmed to be thorough. 

So here is where we are with the issue:

Our mediator provided us with 3 options:

1. Continue to work with the freelancer and try to get the website finished and functioning. Our case would be closed and could never be reopened 

2. Initiate a settlement offer and allow her to communicate between us and try to come to a resolution

3. Enter into arbitration

We elected to work with our mediator to try and resolve the matter. We initiated an offer of resolution that she has presented to the freelancer. We have not been informed of his response or counteroffer but she will let us know when he replies (IF he replies).

Arbitration has a few points I wanted to mention. I have discussed this with my attorney at length and once thing he confirmed is that people who are in the wrong do not want to go into arbitration because they have to pay the fee and the arbitrators are not friendly, loving, BFFs who want to discuss sunshine and rainbows. They are factual, to the point and whomever is in the wrong will most likely lose the case. So with arbitration on UW, there is a fee and it is split 3 ways - the freelancer, the client and UW split it and pay $291 each. Both parties are allowed to present their case and a decision will be made. The decision of the arbitrator is final - period, the end. There are no do-overs, there are no appeals. 

So what does our case look like to the attorney? Unfortunately I am prohibited from discussing certain details but I can state that we deposited $300 into our business account this afternoon so that if the mediation isn't successful, we're ready to go.

So what happens in arbitration if we totally lose the case? It stings and we suck it up and move on with our lives. What happens is we prevail? The arbitrator would likely rule that we are due compensation in the form of a refund and it can be a full refund or it can be a partial refund or it can be a Coke and a smile. It's up to the arbitrator what they feel is fair and just and that is all we are entitled to so we have to accept it.

If we win, collecting the funds are another matter, but there should be no additional costs. First of all, if the freelancer has funds in his escrow account on UW, the arbitrator will be able to order those to be used for the refund payment. If he doesn't and he is allowed to continue soliciting jobs on the platform, the earnings on future jobs will be forwarded to us until the judgement is satisfied in full. HOWEVER, if he doesn't have funds, doesn't take any jobs and doesn't pay within a certain timeframe (usually 45 days), we can take the arbitrary ruling to our local Circuit Clerk and file a default judgement against him for the money. The cost to us for filing a judgement? Nothing. Now a judgement doesn't guarantee we will get our money BUT what it does is place a negative statement on all 3 personal credit reports and in my state, a judgement can remain on the credit reports for up to 10 years and can be renewed 1 time. That is a potential of 20 years with a horrible black mark on his credit. If it is paid say 6 months after the judgement is filed, all that will do is show as satisfied but it does not remove the judgement. The only way to avoid it going on his credit report is to pay the amount before a judgement is filed OR we have the option just to not file it, which would be moot.  

Some may think we're foolish for pressing the matter and attempting to get our money back and that's ok; everyone is absolutely entitled to their own opinions and we are respectful of the way others look at situations or think they would react if they were in someone elses shoes. However, we are not that way and we are doing what we feel is right. Could we be using our time on something more productive? Maybe. But we have chosen to fight the fight because there are just too many people out there who take advantage of others and try to scam honest, hard working people. That goes back to the accountibility factors and being held responsible for failing to keep a commitment. 

Should the milestone payments have been released? Well, the first milestone was due before beginning the work, period. It was a "good faith" deposit that indicated that we were serious about having the site built. Yes, we put the funds in the escrow account but he actually requested that we push the payment because he would not be able to begin working on the site until he was paid the deposit. When we hired him, his profile was 98% job success and he had 12 open jobs. As of today, he has 22% job success and 7 open jobs.

The next milestone was released because he did show us the website home page and there were some buttons that functioned and some features that we could see - we actually did see the developer site and it was coming along. At that point, we were satisfied with what he had built and with what we could see so far so we paid him as that was the agreement; half way finished, half payment. After that payment is when everything fell apart. 

So why do we feel we should be refunded if we paid him for work that we were satisfied with? Because he agreed, in a contract, to COMPLETE the website in 4 weeks. He built just enough to show us something was being worked on and he was paid for what he had done up to that point. BUT, we can't use what he has done because another developer can't just pick up where he left off and finish the website for us. Even if that were possible, I wouldn't put it past him to infect it with some kind of super virus or something. Overall, he failed to complete the contract which was for a functioning website. So he should return what he was paid because his work is not useable. He dropped the ball on this, not us. HE is the one who made the decision to just stop working on it for no reason. I am not restating the case, I am just pointing out why he was paid.

What he did was wrong and it was a scam. Imagine if he is able to scam 10 people a month for $1500 each? Until someone steps up to the plate and fights him, this behavior pattern will continue. 

Hopefully we will be able to resolve this and move on but if not, it is what it is. The new website is coming along very nicely and our new developer has done a lot of work in 2 days. We are very pleased so far and we should be up and running soon. 

I am going to let the mediators do their job and enjoy a nice weekend with my family and I wish you all a nice one as well. 

[petra_r]

---

@Kathy T wrote:

Even if the client and freelancer go to arbitration, and the client wins, the client would still have to "collect" the money, which is expensive by itself

I'm probably wrong in this assumption, but I would think, if it's determined that the client should get a refund, it would work somewhat like a charge back. Upwork would take the amount owed to the client, from any future earnings by the freelancer. 

---

 Oh sure. You're not wrong at all. This will apply **IF** the freelancer doesn't go to ground.

Further legal recourse also applies if the freelancer is who he says he is and where he says he is.

Personally I really hope a mutually agreeable resolution can be worked out during mediation and Jonathon gets part of the work and part of the money back so he can move forward.

[4c78f4d5]

After a MUCH NEEDED weekend away, our attorney contacted us this morning and asked us to print off some info and I went to the feeback for our freelancer. Since our meeting last week and my post here, someone has left him 1 star with a similar feedback situation as ours. He currently has 7 open jobs and I have a feeling there will be more negative reviews to follow but obviously multiple people trusted and hired him because he received several jobs. 

I do wish that we could use the work that he showed to us that he has done regarding the website, the home page, a few functions, etc. but since it was built on his server with his program, I don't think we can use it. We can't even use the logo at this point because when we submitted it to a print company for a banner and some other items, they refused to print it. The artwork was the artwork for another company so of course it is copyright protected. 

Our newly hired developer worked through the entire weekend and was eager to show us her accomplishments! Hopefully we will be up and running very soon. We are definitely moving forward while still fighting for justice and if nothing else prevails, we will certainly be able to warn others.

We sincerely appreciate everyone and all of the thoughts, opinions and advice that we have received from this community. 

[jcullinan]

You've mentioned your lawyer several times - make sure you also bring a copy of the Terms of Service you agreed to with Upwork. While you can decline to continue the project, and cancel the last milestone, the milestones you have already paid for are subject to the terms of the site, and following through with the mediation process, and possibly arbitration, is what you agreed to when you joined.

It sounds to me like an extraordinary run of bad luck. Whether it's an actual scam or a freelancer going through a supremely flaky period is up for debate, perhaps, but the only way to actually get your site built at this point is to hire someone else, whether it's on Upwork or elsewhere.

So, the decision you need to make now is where your energy is best spent: chasing down the $1500 you paid this freelancer, knowing that you won't get any useable work product out of them, or finding someone to build your site and get it online. Personally, I'd write off the fee and move on (though not without some gnashing of teeth).

[4c78f4d5]

Hi, Jess and thanks for reaching out. 

No worries, we absolutely did take a complete copy of the TOS from UpWork with us today when we met with the lawyers as well as the initial contrac that the freelancer submitted to us indicating the dates and work to be completed  😉  

I appreciate your thoughts here and I'm not sure if it was bad luck or just what happened but when someone is supposed to be working and supposed to call in to discuss said work, and later they message and say they decided to take the dog to the vet for a routine checkup, that is not an emergency. We were assured by the freelancer that this website would be up and running by Wednesday - which has again come and gone.

We will most definitely consider the entire situation here and do what we think is best regarding the $1500 however part of the problem with our society today is that people do not feel they have to take any responsibility and they think there are no consequences for their actions. If that was the case, why even write a contract? People can just tell you they will do something, they get half way done but the product is incomplete and not useable but they're tired of working on it so they just string you along and hope you go away? Nice payday for them for half the work but a contract is a contract and it says a complete, working website and that has not been delivered. Maybe we shouldn't have agreed to pay a penny until it was complete but we also see the balance here that in the end, what if we had decided we didn't want the website anymore or didn't have the funds to pay for it? Sure he wouldn't have had to give us the website but seriously that isn't fair to the freelancer because he would have completed a job and we would have bailed on him. So a fair and honorable thing is half the work is done, half the pay is given. But for corn's sake, finish the job, get the rest of your money and move forward. That is why a contract is provided, it lets people know what is expected from them and when it is expected to be complete.

Sadly peole think they can scam people, regardless of the amount or intent, but if they do that a couple of times a month, they make a nice living. People with that mentality are counting on people to give up, cut their losses and they get away with their plan. $1500 is a lot of money for us to just give away. At this point, it's not just the $1500 that we have lost but also the revenue that our site was supposed to generate, inventory expenses, events that had to be cancelled, etc. Therefore, we're not going to just let it go. We might not get our money back, we might end up spending more than that on legal fees (although the lawfirm we are using has assured us that will not be the case) but regardless, we do not give up when we are fighting for what is right and letting people know they can't run over us. 

On a positive note, we have hired a new developer as well as a project manager. The new developer is local so we can actually go to their office and they will come to us as well and they are not charging a penny up front! We do not have to pay them anything until the site is up and running. They usually request a good faith deposit before beginning work (for reasons mentioned above) but they are making a rare exception in this case after what we have been through. We will move forward and we will be successful but we will also be working to ensure this situation is properly and fairly handled.

Thank you again for your advice and time responding. We definitely have a lot of things to consider in this situation. 

[jcullinan]

---

@Jonathon V wrote:

Hi, Jess and thanks for reaching out. 

We will most definitely consider the entire situation here and do what we think is best regarding the $1500 however part of the problem with our society today is that people do not feel they have to take any responsibility and they think there are no consequences for their actions. If that was the case, why even write a contract? People can just tell you they will do something, they get half way done but the product is incomplete and not useable but they're tired of working on it so they just string you along and hope you go away? Nice payday for them for half the work but a contract is a contract and it says a complete, working website and that has not been delivered.

---

I am all for consequences and for trying to hold people accountable, but there is a point where you have to decide where your energies are better spent. What this freelancer did was wrong. You're pursuing the options available to you. No need to keep writing essays about it (though I've been known to do the same when unreasonable clients display similar behavior... humans. Sheesh.).

[4c78f4d5]

Thank you.

[bobafett999]

Jonathon:  Based on your account, it is entirely possible that you got an 'experienced'  farmer.  In Upwok terminology a farmer is defined as some one who gets contract and in turn hires a low cost worker to do your work.  May be in this case it did not go well for the farmer.

You know in internet world (IMO) bulk of the things you see - read - hear are fake.   It is so easy to claim your expertise on anything.  You can pretend to be a brain surgeon and can have a blog on Alzheimers.  In turn you can have your posts written by some one on Upwork for $5 or less.

[4c78f4d5]

I don’t put anything past anyone at this point.

[charles_kozierok]

I don't think I could ever become a developer on this site. Based on the reports from clients, it would place my health and that of my family's in mortal danger.

I think it is very likely that this is a "dog ate my homework situation." I have had personal issues come up in the past. I still got my client work done.

Even if he is telling you the truth, you are entitled to a full refund IMO.

Why? Because too bad. Yeah, I'm a heartless **bleep**, but this is business, not a charity or social group. It's reasonable to allow a slippage in a deadline because of a family emergency but NOT to allow outright non-delivery while still making payment. He didn't do the work. He shouldn't get paid.

You are to be commended for your willingness to be patient and considerate with this person but it likely is going to waste.

Personally, if I ever had a large project like a website, and I hired on this site, I would only hire someone with a very long and superb track record (maybe this person had one, I don't know) and I would pay exactly 0% up front. Payment would be by milestone only, and those milestones would represent tangible progress -- actual useful deliverables, such as a UI design or a back-end implementation.

It's unfortunate that this happened and I'm not blaming you for it. It sounds like you did your best here, and just got unlucky with the person you picked.

[4c78f4d5]

Hi Charles and thank you for your thoughts here.

Yes, my wife has been physically sick over this and I am definitely prepared to fight it for her. 

You're not heartless by any means; I feel the same way. Things happen and we understand that but this is to a point where it is just a game to the freelancer while it is our business and livelihood. 

We are doing our best to work with the mediator in hopes she can help us mutually resolve this and we can all move forward. However we also have our $300 sitting on ready and are fully prepared to go to arbitration if necessary.

Thanks again for your opinion and support. We really appreciate it.

[4c78f4d5]

For the interested ones, here is an update:

Last week, our mediator reached out to the freelancer and presented him with our offer to resolve and end this situation. Of course, as usual, he has yet to respond and probably won't. Interesting how a software developer can't seem to manage receiving his emails...

She continues to repeat that is was our responsibility to vet our freelancer but one of the influences that led us to hire him specifically was because UW said he was the best match based on the job and his experience. She also continues to say we shouldn't have funded the milestones if we were not happy with the work and I get that but we WERE happy with what we could see at that time. I mean, it's a website that was being built and we can't do that so we could only go by what we could see at that time. By him NOT finishing the website, how can we be expected to pay for anything???  We can't use it!  But, it gets even better...

So, if he doesn't respond to the refund request, his account will be suspended (it is only financially limited at this time). We of course have the option to enter into arbitration but again, it is highly doubtful that he will respond to that. So basically we can turn over our $291 for arbitration and we wait for the timeframe to pass while he just ignores it, like he has everything else. After so many days, if he doesn't respond to the arbitration, we don't go and we just get our $291 back and he gets suspended from the site. No real consequences for him because he still has our $1500 (and no telling how much from other people) and we still have zero. 

Our other option is to pursue a lawsuit against him. He owns his own software company so the BBB, IC3 and FTC are all avenues to file valid complaints with for sure as well as blasting his name all over Ripoff Report. 

We still have the link to the developer site where he showed us the home page, certain functions, etc. In essesnce, work that we have paid for and cannot use and have no access to other than to look at. I have been using that link daily to ensure he has not removed it (as per my attorneys request) and low and behold, today I went to it and he has changed the site but is using that framework, layout, color scheme, content and even our logo as a new site for someone else! It's the same url and everything but a different company's info and products (we never saw any of our products on the site because nothing was ever added for us) but, he has actually stolen what we paid for and has given it away to someone else! Being the detail geek that I am, I have been taking daily screenshots with date and time stamp so I have all of the proof.

The problem with that is he has modified "evidence" that the arbitrator would be able to use to see what work was completed and if we didn't go into arbitration and ended up in court, that url would also be considered supporting evidence to our claim and it has been severely tampered with.

How is this even possible that he is just doing whatever he wants to do, ignoring the whole situation and yet the mediator hasn't made a decision as to whether we are due a refund or not? He will not respond to any of her messages and his phone number is invalid - I would think that it would be necessary for freelancers to keep their contact info current. For some reason, he is being highly defended in this matter while we did everything that was asked of us and played by every rule but are being treated like we have done something wrong!

He has definitely been given multiple chances to take care of this situation, I even granted him the extra 2 weeks but it almost seems he's getting a pacifire and a diaper change while we are sitting and waiting for him to have more time to respond.

We have requested his contact information but our attorney already has it. Thankfully, he is also looking into further responsibility as well and hopefully this will be resolved soon. 

The new site is coming along very nicely and with any luck, will be functioning and ready by end of next week. I mean seriously, 3 weeks to do what we have been waiting 2 months for. 

So that's where we are today...being from the south, a common expression is "bless his heart" so I guess we just have to hold his hand and let him have more time because goodness knows, it has only been a month and we can't expect him to actually meet a deadline. Have a good evening.

[tlsanders]

Jonathon, since you are working with an attorney, you are probably aware of the process involved. For example, you probably know that the contract that you and the freelancer both entered into with Upwork doesn't allow for the mediator to "decide" the case--all the mediator can do is attempt to facilitate an agreement.

You probably also know that it is the arbitrator who has the authority to decide, and that the terms of service also specify the amount of time either party must be allowed to respond before the dispute can advance to the next step.

It is surprising that someone as detail oriented as you are and who is working so closely with an attorney would be so annoyed that Upwork is complying with the terms of its contract. 

You may also want to review the arbitration clause in the Upwork TOS with your attorney. I can't recall exactly what that clause says, but most arbitration clauses create limitations on your right to pursue your claim in court rather than through arbitration. 

[4c78f4d5]

Thank you for your opinion, Tiffany. I am more than glad to address your concerns and hopefully clear up some of the confusion.

Yes, I am aware of how the process is supposed to be completed. I will simply copy and paste some information directly from the email from the mediator: **edited for Community Guidelines** However, I do fully understand that she is not the deciding party, she is a mediator and I do know what that means. It was merely a statement and I apologize if it was confusing.

Yes, I am aware of the arbitration process and the times allowed. This has been going on for almost 3 weeks and he has not responded a single time to any of the emails that have been sent to him by the mediator. I am also aware that he can continue to ignore the mediator, I can pay for arbitration and he can ignore that as well. Here is some more information directly from the email: **edited for Community Guidelines**  Again, he can just not pay and ignore the situation and it will never even go to arbitration.

Please tell me how being detail oriented and discussing my situation with an attorney is related to me being annoyed? OCD people are not allowed to get annoyed or upset? One has absolutely nothing to do with the other. I am not annoyed that UpWork has their own policies and procedures regarding how they handle disputes. What I am annoyed by is the fact that UpWork seems to be defending a freelancer, who has been paid for work that he has not given to us and he is now using for another client and who has just received a 1 star rating for the exact same issues I am dealing with and giving him all the extra time to respond when he is clearly not going to. Yes, that is annoying, forgive me for venting and being annoyed that this seems very one-sided towards the freelancer but has nothing to do with my attention to detail or working with an attorney. A moot point, indeed.

Rest assured, the TOS of UpWork have been thoroughly reviewed and the proper protocol regarding the litigation process is being followed correctly. Here is the exact statement from the email that was sent to us by the mediator today: **edited for Community Guidelines** That sounds like we sort of have the go-ahead from the mediator and are within our rights to forego the arbitration process and go directly to the freelancer - legally. It might be noteworthy to mention that while there are TOS on the platform itself, each and every state also has certain laws that superceed some terms regarding specific incidents. I doubt our attorney would file a lawsuit that wasn't allowed and I would hope that the mediator would be aware of the process that is required. 

Hopefully this clears up some of your questions. I fully trust our attorney to handle this matter and I can definitely refrain from further updates as I definitely would not want to confuse anyone or cause any conflicts. I was in hopes that my post might help others who experience similar disputes however, I can see where it might cause issues.

Have a nice evening and thank you for your observations and input.

[AveryO]

Hi Jonathon, 

I had to edit your post because it violated the Upwork Community Guidelines. Posting email content, chat transcripts or other private communication is not allowed in the Community. 

I would suggest that you refrain from discussing your case in the Community, and would recommend that you continue communicating with your mediator to resolve the issue. 

[4c78f4d5]

I apologize for posting the quotes from the email and will definitely not post further. Thanks!

[melaniekhenson]

Did your lawyer tell you it's okay to discuss all this on a public venue??

If not, what if this guy has been reading all this - because surely he guesses you and the other clients are hopping mad and may have loose lips - and he is screenshotting all this?

That may sound paranoid and I don't know much about the law but I do know that in some cases, if you divulge information that is part of a lawsuit you could shoot yourself in the foot. And it isn't like it would be hard for people to figure out who this guy is. You've given a lot of "hints" to point us to what job it was, if your profile is still public. Or even if it was at the start of all this. I don't know and I'm not going to look.

I honestly would just really wonder at the wisdom of publicly speaking about the details of a lawsuit or potential one.

[4c78f4d5]

Yes my lawyer knows everything that I've posted. Certain information that he has given instruction to keep confidential have not been disclosed here nor anywhere else. 

I haven't posted anything here that I would not say to the freelancer himself - he's already heard it directly from me via messages anyway prior to us opening the dispute with the mediator. I can't discuss the specifics but I can say he did reach out today and we are working with the mediator to come to a resolution, close the matter and put it behind us so we can all move forward.

My profile isn't private and I did not provide any hints, I don't operate like that; just straight-forward. I only stated facts and I have nothing to hide. It wouldn't be difficult to figure out anyway since this was my first (and last) situation involving a freelancer via the internet.

We have been very fortunate to find a local developer and things are going very well! I met with the developers today and we are now on the 10 day countdown to her site being up and running. 

[colettelewis]

While I think the freelancer is certainly very much at fault, surely it would have been simpler and much less expensive, to have taken the case to arbitration? It is very unlikely  that you would have lost and you could have moved on and either found someone reliable (not from here necessarily) to complete the job. This must have involved you in a lot of expense that must by now be considerably more than your initial outlay. 

Don't you think that time and money would be better spent getting your site and the business up and running, than by seeking some kind of justice that is not likely to be very effective?