What Would The Labor Department Say?

[#1]

I bump into this situation from time to time. Before I launch into the topic, however, let me say that this is an issue that Upwork is not particularly prepared to address. But it's not a problem I think Upwork is duty-bound to confront, either. It's just this is a notable crack in the modern understanding of publication services. 

Here's the scenario: I sign on to a writing job that requires research, including interviewing some key players. The preliminary work, prepping for the interviews, doing background research, takes about two hours. The publisher then personally reaches out to the people we need to interview and they turn him down flat. No interviews. The project is baked.

So, now I've worked two hours for this publisher and I have a contract that says I will write a story for him in order to get paid.

After two weeks of waiting for progress on the interviews with no forward progress, I write to the publisher: "You owe me for two hours. I get $40 per hour -- I expect $80 from you."

I also say, "If anything moves forward, I would be glad to write the story for you. But for now, I require payment."

His response: Do I understand you correctly? You are refusing to write the story?

Nice try. No, I say. I clearly told you I would be glad to write the story if the interviews ever happen.

He then pays me $50. 

I consider this a win. In the old days, if a story was bumped through nobody's negligence, the publisher (this is common for magazine contracts) would offer the writer a "kill fee," which was generally 25 percent (sometimes more) of the total on the contract. So, less than $80 is fine with me.

But I assume the client feels I just ripped him off, because I've written a couple of notes to him with no particular emotional portent and he doesn't respond (as he did in the past). 

I don't think Upwork can account for this. As per our contract, I shouldn't get paid. I understand that completely.

Here's what the Labor Department would say, however: They would say we abolished slavery in this country. When you work, you get paid. It's as simple as that.

I've worked with the Labor Department's legal department and I am fully versed in their workaday parameters. Underlying constitutional premise aside, they wouldn't touch this situation with a ten-foot pole. And I wouldn't dream of asking them to.

So, I don't know if this posting is helpful to anyone. I figured the client I worked with was upset over the outcome of this -- he paid for services rendered without anything to show for it. On the other hand, I worked for two hours and had to settle for a diminished paycheck. Like I said, in magazine freelance work, that's how the contract crumbles. So I don't feel bereft. 

But I tried to salve his feelings with this explanation. See if this works for you:

"Thanks for the payment. I feel that's fair. But let me say this so you understand where I'm coming from:"

"You go to a mechanic because your engine is making noise. The mechanic diagnoses the problem. It takes two hours to do that. He says you need a valve job. You then decided not to do the valve job for lack of parts -- for lack of having the answers to the questions we submitted to the people we need to interview in this case."

"So, through no fault of the mechanic, you don't get the valve job done. But the mechanic waits a bit to see if the parts might show up. After two weeks, the mechanic realizes he has worked on your car for two hours and the parts are not going to show up. So he hands you a bill for two hours spent diagnosing the problem." 

"The analogy is pretty clear. A mechanic doesn't diagnose a problem with your car because he's glad to help you out. He's at work. He gets paid for what he does."

"I think I'm just rattling on and you've already gotten the point. I get paid for my professional services. Will I write the story if the parts come in? Yes, I will. Will I charge for that? Yes, I will. Why? This bears repeating: Because I get paid for my professional services." 

"I hope this makes sense. If it doesn't, I'm not sure how to explain it better."

So, chew that over. Please don't lecture me on why I don't understand how Upwork works or doesn't work. I'm not asking them to change. What they do, they do well enough. Further, had the client not paid the $50, I would have moved on briskly. No point getting stewed over two hours.

[#2]

In the future, maybe set up the research component as a milestone or else ask for an hourly contract? If it's 25% of the work, then ask for that much for the milestone. Take the tools and adapt them to fit your purpose.

I think clients who hire writers assume that all they're paying for is the actual number of minutes you spend in deep thought typing. There are a lot of other components to the job. Unless we start to educate clients about this and encourage other freelancers to insist on being paid for ALL OF THE WORK they do, we're going to continue to perpetuate the bad ideas that clients with unrealistic expectations already have and continue to pander to their skewed perception that writing is so easy anyone could do it. I think it's about time that clients looking to hire writers started to get some realistic ideas about how long project development actually takes and how many hours people need to put in to the creation of a quality product. 

[#3]

I completely agree, Renata. 

The problem is that the majority of the blog-hiring macaroons out there don't give a fig about research. This is completely the opposite of my understanding of the job.

Not trying to puff myself up here, I worked for eight years covering finance at United Press International. The place was a factory. (Well, it was a news wire service that behaved like a factory.) In eight years, I wrote more than 30,000 news briefs at UPI. (Plus a daily column most of my years there.) And that's not a typo. 

The long and the short is that I can now write a story hanging from the crow's nest of a tall ship in the middle of a typhoon. The writing to me is nothing. 

Publishers (I'm including those platoons of so-called publishers on Upwork who haven't begun to shave yet) often base pay on a word count or ask "How long will it take you to write this?" I tell them the writing is inconsequential; they're paying for the research. 

Not many of them get that. They generally ask for a price quote before telling me the topic. These are, generously stated, run and gun macaroons. If I tried to put research into the contract, they'd likely just end the conversation after telling me I haven't a clue what I'm talking about. 

Doesn't mean it's not worth trying, however.

[#4]

Anthony, 

Just because you can as you say "now write a story hanging from the crow's ness of a tall ship in the middle of a typhoon", doesn't mean you shouldn't be well compensated for your expertise and paid for the writing. You put the time in, you developed the skills to do that. The writing is not inconsequential. I think there are various versions of an anecdote doing the rounds of the forum of the specialist who charges $1 for parts and $999 for the expertise they've acquired. I repeat, the writing part is not inconsequential. Just because you put in the required time so that you can now do it quickly, doesn't mean it lacks value.  And just because you can write something in an hour that would take less experienced writers five hours, doesn't mean that you should earn less than they do.

I don't think we do ourselves or anyone else a favour with the type of undervaluing you're talking about. Since we freelance, we are our own labor department. I've seen a guy on this platform with 15 years of newspaper writing experience charging $18 an hour. That's as much as some people earn in junior secretarial positions. What gives? 

I'm starting to think that the one thing that's worse than people who puff themselves up without cause is people who overdo the humblepie thing and, as a consequence, don't realistically assess their expertise and ask to be adequately compensated. 

And by the way, I'd love to have the ability to "write a story hanging from the crow's ness of a tall ship in the middle of a typhoon."  But I don't think I'd be able to get that kind of experience without having to nearly starve to death earning less than one cent per word on this platform. 

[#5]

Renata -- point taken. And, yes, all those years of training and schooling and all that ... I get it. Similar to your $1 for parts and $999 for knowledge idea, I once, long ago, asked a veterinarian (my brother-in-law) why some vets charge $10 to spay or neuter an animal and $200 for flea collars, while others do the opposite. He said, "It doesn't matter what vets charge  for any particular service. In the end, no matter who the vet is, the customer still has to pay for his or her studenft loans, his or her mortgage, his or her food, clothing, shelter." So, yeah, this is the way it is for writers, as well. 

I always ask myself what's the meta message when billing for a job. I don't want the clients to know how fast I write, because then they look at the hourly rate and realize I earn about $100 and hour, which sets them back. So, I tell them what the price per job is and they don't have to know whether I write quickly or not. At the end of the day, I have to earn $X and while it matters to me whether I can rip off a few assignments quickly and go play a round of golf or whether I can't ... but my clients don't really need to judge that, either.

By the way, Bill H: There are a lot of people in this world who give themselves permission to be rude. I try not to pay any attention to them.

[#6]

Hi Anthony,

I guess my only point is this: many of the clients I've experienced on this platform are not going to line up and volunteer to pay. The idea of chivalry is nice, but any expectation of a "gentlemen's" agreement on this platform is really pushing it.  I'm not saying that gentleman cllients don't exist, but they're in fairly short supply. I wish it was a better environment, and possibly there might have at one time been better clients on Elance. That's not the type of platform we're on. 

The thing that gets me is this. You're a more seasoned writer than I am and if people like you aren't going to use their standing as professionals to establish fair compensation, all those macaroons as you call them are going to get the same idea: you don't have to pay for the research. And if they got away with not paying it with you, they're certainly going to get huffy when I come along and try to ask for it. You're not just doing yourself a disservice by not nailing down a milestone for the research. You're doing me one too because you're perpetuating bad client expectations that the research/prepatory part of the job should be free. If you did it for free, they're going to expect me to do that too.

There's a simple, readily available  tool you can use to ensure payment for the setup work. I think everyone should get more accustomed to using it. There's enough stupid people out there doing more work than they're getting paid for and charging less than they're worth. I get invitations to jobs with budgets that don't pay enough for the electricity to power my laptop all the time.  I think it's about time people got an education about what real writing and editng jobs really cost. 

[#7]

It's indeed very sad to see great professionals with years of experience who undersell themselves.

And it does the whole community a disservice.

[#8]

The idea that any client in this situation would hesitate to pay the $80 makes me tired. But it is the world we are living and working in nowadays. Anthony, I agree with you, I wouldn't chase somebody down the street over an hour or two. But it's annoying. Milestones are the tool we have to prevent this contingency but as you say, it's difficult to set them up with a client who doesn't really understand the components of the work to be done.

Reminds me of a recent exchange I had with a client who wanted a ballpark cost for one-hour, in-depth interviews as part of a larger research program. I quoted a per-interview amount that represented about 4.5x my hourly rate and she was completely flummoxed by the "discrepancy". I had to explain the budget would include time to create the moderator's guide, find the prospective respondents, contact them, qualify them, schedule interviews, conduct the interviews, review the audio recordings and notes, re-schedule and/or replace the no-shows, analyze and synthesize all of the findings and write a summary report.

I haven't yet set up that kind of project on UW but it will definitely call for some very thoughtful and precise deployment of milestones, to replicate the cancellation fee terms in my off-UW contract.

[#9]

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@Phyllis G wrote:

The idea that any client in this situation would hesitate to pay the $80 makes me tired. But it is the world we are living and working in nowadays. Anthony, I agree with you, I wouldn't chase somebody down the street over an hour or two. But it's annoying. Milestones are the tool we have to prevent this contingency but as you say, it's difficult to set them up with a client who doesn't really understand the components of the work to be done.

Reminds me of a recent exchange I had with a client who wanted a ballpark cost for one-hour, in-depth interviews as part of a larger research program. I quoted a per-interview amount that represented about 4.5x my hourly rate and she was completely flummoxed by the "discrepancy". I had to explain the budget would include time to create the moderator's guide, find the prospective respondents, contact them, qualify them, schedule interviews, conduct the interviews, review the audio recordings and notes, re-schedule and/or replace the no-shows, analyze and synthesize all of the findings and write a summary report.

I haven't yet set up that kind of project on UW but it will definitely call for some very thoughtful and precise deployment of milestones, to replicate the cancellation fee terms in my off-UW contract.

---

I understand this picture. And I understand trying to explain it to clients who don't get it.

It's really similar to teaching or competitive gymnastics. The end product they can see doesn't show the amount of work you need to invest in the process of making it happen.  It's similar to the way people don't realize that a major components of teaching is the prep time.

[#10]

Anthony, your analogy about the mechanic is apt. All the blather about the Labor Department is not, and I don't know why you keep going on about it. If you've worked with their legal department, then you should certainly know (as you should for so many other reasons) that as an independent business person you are the owner of the mechanic shop in this analogy, not the hourly worker under the hood. 

There is a LOT of confusion among freelancers about what legal protections do and do not apply to them, and there's no excuse for someone of your experience to keep pretending ignorance of the very different role of an independent contractor and confusing things for those who are less experienced or knowledgeable.

[#11]

Anthony,

Please pardon my bluntness: This is entirely your fault.

If you accepted an hourly contract to produce a written deliverable, shame on you. The process of creation (design, document, whatever) must be fixed price.

If you accepted a fixed price contract, and failed to include a "Discovery" milestone, that's just as bad.

If you failed to describe your process in your response, shame on you. I've accepted a few writing jobs, and described the process in detail. There is always a discovery, or baseline, or whatever phase at the beginning. In ghostwriting, I ask why the book is being written, who the target audience is, why anyone will pay for the book, what reaction do you hope to elicit from the reader, and at least half a dozen other questions. I require a voice-to-voice conversation before accepting. I tell the client that I will send chunks of the work as they are completed, to ensure I'm on track.

You let the client arrange the interviews? This is incomprehensible. I took on a small job, maybe $5K, a few years ago to write a series of documents to support the client's decision on whether to enter a market. I arranged all but a handful of the interviews; I used another freelancer, an attorney, to schedule interviews with other attorneys. I described each interviewee, but did not provide names. I'll provide names if required, but they weren't.

With your background you're writing blog posts? God help us. I accepted one blogging job just to see what it was like. It was in an area in which I am an expert, and was still mind-numbing work.

Anthony, I cannot conceive of a set of circumstances in which this is not entirely your fault. I do not wish to offend, but to educate. If you find me abrasive, get in a very long line.

[#12]

This is one of the reasons why I moved from writing to proofreading & editing. 

I'm a very slow writer and often take longer to research than write (and I charge for it). I don't think I ever did fixed-price writing jobs, and I'd always let clients know beforehand that I could take a few hours for just one article. Not many were willing to pay that much.

Editing is much easier and less stressful.