Being treated as fulltime employee

[b8f2e6da]

Hello!

I'm not familiar myself with Upworks, but my brother is working for a company that hired him using Upworks and he is declared as "auto-entrepreneur" / "self-employed" in France.

This company often act as an traditional employer, most people are hired from upworks and they participate in some sort of team building meetings, they have fixed work hours, salary and such.

He was hire at quiet a low rate 2 years ago, especially compare to newer recruits, but trying to discussed new rates is always strictly refused.

Other issue is that he was in Canada when he was hired, but as french citizen he had to go back to France recently but the company refuse to change he work hours (even though the company is french too), so he is currently force to work during evening until 22.00 and they refused to adjust his work time.

Its a fulltime job (40 hours a week) where you need an online presence (verified by a software which detect clicks). So it's his only client but this create a one way relationship where the company do as they want with the persons they hire on Upworks and "let them go" when they please.

Is this normal ?

Does he have any chances of a change in salary or work time ?

It looks like a large part of the company work this way and have a very unhealthy relationship with the ones they hired and really looks like diguised employment of some sort, if that make sense. Freelancer are all under the threat that the contract will simply end and will be replaced by another. I'm no lawer but looks a bit strange and according to some french law I saw it shouldn't be a legal situation.

That's why I hope some peoples with more knowledge could give us some advice about this situation.

Thanks!

[versailles · Accepted solution]

If the company is paying outside of Upwork, the company and your brother are breaking Upwork's terms of service.

If your brother and the company are located in France, the company is breaking the French labor law as this is obviously an employer/employee relationship not a business/contractor relationship. This means that your brother can gather all the evidence that he is being treated as an employee (work hours, monitoring, absence of business independence) and contact the labor office for legal remedy.

With abit of patience and perseverance, he can win some nice indemnification.

[b8f2e6da]

Thanks a lot, indeed the law in France doesn't allow this kind of relationship but they get away with the situation because all of them are worry to lose the job, it's a vicious circle.

I also learn that the recent recruit were asked to not share how much they were paid with each other.

I just feel there is other type of contract in France that would be much more fitting for this type of fulltime job with those conditions. They try to reduce their cost by taking advantage of unexperienced Freelancers.

Anyway thanks a lot for your feedbacks, I will see with my brother so he can gather some evidence and get advice from labor office.

[martina_plaschka]

There is no normal, there is only what was agreed between freelancer and client. Obviously he can quit this job any time. As Rene has pointed out, there might be some legal remedy, but if he comes at them with French labor laws and such, this will be the end of that job anyway.  

[b8f2e6da]

Yes he is definitly searching for something else as the situation is really not great.

[colettelewis]

Julien, 

If your brother is being hired by a client on Upwork and is being paid via Upwork, then the client has the right to terminate a contract at any time they please, and in the same way, so does your brother.

If the client is refusing to negotiate either on time or budget, then perhaps it is time for your brother to amicably terminate the contract and start looking for other clients on Upwork or outside Upwork. 

As an autoentrepreneur/microentreprise, your brother is responsible for his own business. All the French authorities would care about in this respect, is that your brother pay his taxes every quarter, if that is the way he has set it up. And it is best to keep all the Upwork contract invoices, in case he is asked to produce them by the French tax authorities. 

[b8f2e6da]

Thanks for your help. 

He has a contract that state he needs to give a 30 days notice:

"Either party may terminate this Agreement at any time by giving a 30 days written prior
notice to the other party of the intent to terminate."

After some research there is some laws in France that if there a "subordination link" (not sure of the english term) it could be transform into a contract ("contrat de travail"). And the client / company could be paying the taxes they were suppose to pay he they hired fulltime employees correctly.

[colettelewis]

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Julien T wrote:

Thanks for your help. 

He has a contract that state he needs to give a 30 days notice:

"Either party may terminate this Agreement at any time by giving a 30 days written prior
notice to the other party of the intent to terminate."

After some research there is some laws in France that if there a "subordination link" (not sure of the english term) it could be transform into a contract ("contrat de travail"). And the client / company could be paying the taxes they were suppose to pay he they hired fulltime employees correctly.

---

Is he actually hired by an Upwork client on an Upwork contract and being paid via Upwork? 

[b8f2e6da]

Yes he is paid every last Wednesday of the month by Upwork

[colettelewis]

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Julien T wrote:
Yes he is paid every last Wednesday of the month by Upwork

---

____________________________

I doubt if this sort of contract would carry much weight if your brother were to leave. However, if the client depends on his work, then it would be diplomatic to give one month's notice so that the association can be ended as amicably as possible. Upwork does not have this sort of binding contract for either client or freelancer. 

(There is an Upwork payroll, but this system, as far as I know, only applies to contractors legally resident in th U.S.)

[data_divas]

Julien T wrote:
"Yes he is paid every last Wednesday of the month by Upwork"

This whole thing sounds fishy.  Is this an hourly or fixed price project?  It's better if your brother is here to communicate about this directly.

[versailles]

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Julien T wrote:

Thanks for your help. 

He has a contract that state he needs to give a 30 days notice:

"Either party may terminate this Agreement at any time by giving a 30 days written prior
notice to the other party of the intent to terminate."

After some research there is some laws in France that if there a "subordination link" (not sure of the english term) it could be transform into a contract ("contrat de travail"). And the client / company could be paying the taxes they were suppose to pay he they hired fulltime employees correctly.

---

A subordination link, if proven in court of law, will definitely be regarded as a work agreement in France and the employeer will have to pay social security taxes and all applicable benefits to the employee.

Your brother would probably benefit from not working for these people any longer. He can close the Upwork contract any time and sue them. There is no remorse to have with this kind of people. 

[claudiacezy]

Upwork is a platform that connects businesses, it's not a platform for engaging in employment relationships. I suppose the contract contains provisions that describe a client-independent contractor relationship. Probably the freelancer should act as one, as a businesss, and use a formal mean to bring to the client attention that their working relationship may not meet anylonger the conditions as set under their contract, such as working at hours independent of the client schedule, one of the factors which describe a client-independent contractor relationship, and request to respect the contract... bla bla bla .... 

[petra_r]

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Claudia Z wrote:

Upwork is a platform that connects businesses, it's not a platform for engaging in employment relationships

---

It's both. Many Enterprise clients are employing thousands of people all over the world as employees through Upwork.

[claudiacezy]

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Petra R wrote:

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It's both. Many Enterprise clients are employing thousands of people all over the world as employees through Upwork.

---

Yeah, it passed my mind after I posted that some clients may be able to use the Payroll service. However, unless I'm mistaken it's available only for "Freelancers who will work in the United States", I suppose it means this is a service only for clients in the U.S.

For example https://community.upwork.com/t5/Freelancers/Ridiculous-Opt-Out-fee/m-p/969144#M606782 ... I suppose in this case the client can sign-up for the Payroll service to employ the freelancer.

[petra_r]

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Claudia Z wrote:

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Yeah, it passed my mind after I posted that some clients may be able to use the Payroll service. However, unless I'm mistaken it's available only for "Freelancers who will work in the United States", I suppose it means this is a service only for clients in the U.S.

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I (and countless others all over the world) was employed by an Enterprise client through Upwork so no, it's not just USA. It's just more straightforward via Payroll.

[claudiacezy]

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Petra R wrote:

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I (and countless others all over the world) was employed by an Enterprise client through Upwork so no, it's not just USA. It's just more straightforward via Payroll.

---

There are limitations on hiring a freelancer as an employee through Upwork. It's not a common use or for the general audience. "Most Enterprise projects aren't advertised publicly. Hiring managers first look in a private pool of client-approved freelancers and agencies called a Talent Cloud. " https://support.upwork.com/hc/en-us/articles/218373797-Join-a-Talent-Cloud

My impression is that the Payroll Service is only a remedy for certain long-term engagements that may be classified as employment. You can be classified as an employee under the Payroll Services, however, it's not a traditional employment."Freelancer becomes a “Payroll Employee” ... but also remains a Freelancer under the Terms of Service".

[tlbp]

Your brother needs to make some choices. Freelancers only work for those whom they wish to work for. Your brother is no different. He must decide what next steps he wants to take--legal or otherwise. 

[prestonhunter]

There's two different topics in this thread. One has been discussed quite a bit, and that has to do with freelancing versus full-time employment, how a freelancer is treated, etc.

Another topic is your role in this.

I have brothers. I can assure you that I don't know anything about their finances, how they get paid, how often, how much, etc.

I could ask them and they would tell me.

But I don't care.

When we talk, I think they are more interested in talking about their children and sports and things that are of interest to them... Apparently HR matters aren't.

There is nothing inherently wrong with you knowing all this stuff about your brother.

But you are not required to. You could just leave that all alone and not get involved with his HR issues.

But, if you remain interested, you already know you can't do anything, right? You can't go to Upwork and discuss somebody else's account or dealings. Upwork wants to talk directly to people who have issues. Unless your intent is to report someone for violating Upwork TOS. You can report other people for violating TOS, but you need to understand that in most cases, Upwork won't tell you anything about their own internal investigation and any punitive actions they take.

I guess you could go to federal authorities in your country, but I really have no way of knowing if they will talk to you and take action, or if they would only want to talk directly to victims or perpetrators or whistleblowers or whatever the case may be.

[b8f2e6da]

I was simply searching for information on my own time, and I though that the fact that I wasn't the one directly concerned could be relevant somehow. I only wanted to make sure that this wasn't a normal situation on Upworks as I don't have experience with Upworks and my brother only started freelance for this job and has no plan on continuing beyond that (meaning he doesn't know much about freenlancing either).

I have no intent to do anything apart from giving him the information that I could gather, it's up to him to do what he want with it and I just hope it help him to make a decision. 

If my family has issues/need help we discuss about it, I don't think judging my relationship with my family based on a forum thread is really apropriate...

I was just giving the facts I knew and asking for some advice / information which were given, and I'm very thankfull for it.

I was'nt sure anyone would reply so I'm really glad that some people took to the time to read and answer my questions.

[turbocro]

Problem is very simple, and don't see point in debating, if he want a raise and they don't want to provide it, he can simply stop working for them and find another client, not really sure what other answer are you  expecting here ? 

You cannot force client to pay more then what was initial agreement if client does not want to do it, best for you brother and client both is to simply move on, he can go looking for other clients and they can find another person who is willing to work for whatever amount they have in their budget.