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Can Upwork charge the fees?

suznee
Community Guru

I ask this in the announcement section, but it got lost in the 80 pages of complaints. I really would like a response from Upwork on this. 

 

I am curious if Upwork is aware that it is banned in some states to charge a checkout fee? 

 

Quoted from cardfellow.com

 

States Where Merchant Surcharging is Banned

If your business operates in any of the 10 states (CA*, CO, CT, FL, KS, ME, MA, NY, OK, TX) whose state laws prohibit surcharging, you may not charge checkout fees in that state. However, if you do business in multiple states, you may still surcharge credit card transactions in those states where the practice is not banned.

 

Hawaii, Illinois, New Jersey, and Rhode Island all have legislation pending that will ban surcharging if passed.

 

- See more at: https://www.cardfellow.com/checkout-fees-charging-credit-card-fees-to-customers/#sthash.AmdHkl5J.dpu...

 

* As of March 2015, courts in the state of California have ruled that the ban on surcharges is unconstitutional. The Attorney General has filed an appeal, but while that is in process, a surcharge ban cannot be enforced. However, California does have laws that still apply regarding deceptive pricing, so you may want to consult an attorney if you're considering imposing a credit card surcharge on a business operating in California. More information is available at the Office of the Attorney General of California's website. - See more at: https://www.cardfellow.com/checkout-fees-charging-credit-card-fees-to-customers/#sthash.AmdHkl5J.dpu...

 

Debit cards are also not allowed to be charged. So how are you going to handle when someone uses their debit card to make a payment?

 

Also Paypal for instance states in their terms:

 

4.5 No Surcharges. You agree that you will not impose a surcharge or any other fee for accepting PayPal as a payment method. You may charge a handling fee in connection with the sale of goods or services as long as the handling fee does not operate as a surcharge and is not higher than the handling fee you charge for non-PayPal transactions. 

 

https://www.paypal.com/webapps/mpp/ua/useragreement-full

 

Seems to me it is surcharge rather than a handling fee ... but I am sure Upwork has decided it is a handling fee.

 

Also a comment made in another thread:

 

Vaclav S wrote:

Posting this to draw some attention to it: the new 2.75% fee on all payments is even worse, because it is non-refundable. Support told me so when I asked:

 

Q: "If you refund a payment (due to cancelled contract), do you refund the 2.75% fee as well?"

 

A: "I have verified that information for you and unfortunatelythe 2.75% processing fee will not be refunded."

 

https://community.upwork.com/t5/Clients/Charging-me-to-make-a-payment-Are-you-kidding/m-p/191405#M98...

 

 

 

Don't keep checkout fees when refunding customers. When issuing refunds, you must also refund any checkout fees that were charged — even for partial refunds. For example, if you refund 50% of a customer's money, you also have to refund 50% of the checkout fee you collected. - See more at: https://www.cardfellow.com/checkout-fees-charging-credit-card-fees-to-customers/#CheckoutFeesvsConve...

 

Here is some other links about charging a checkout fee or fees 

 

CREDIT OR DEBIT CARD SURCHARGE STATE STATUTES

 

Eleven states—California, Colorado, Connecticut, Florida, Kansas, Maine, Massachusetts, New York, Oklahoma and Texas—and Puerto Rico have laws that prohibit merchants from charging consumers with surcharges on credit card transactions. Minnesota prohibits a seller of goods or services that establishes and is responsible for its own customer credit card from imposing a surcharge on a purchaser who elects to use that credit card in lieu of payment by cash, check, or similar means. The laws in California and New York have been challenged in court.

 

http://www.ncsl.org/research/financial-services-and-commerce/credit-or-debit-card-surcharges-statute...

 

I would like to know how Upwork is going to handle this since they plan on charging the clients a fee for each transaction. I would also like to know if the fee applies to each freelancer they pay or if it is based on the weekly payout to clients who have multiple freelancers.

 

32 REPLIES 32
lmchollet
Active Member

Thank you so much for posting all of that.  As someone who lives and works in the state of Colorado where these fees are banned, I had actually been wondering the same thing.  

 

 

***Upwork**** please address this!!!!

prestonhunter
Community Guru

Suzanne:

I have nothing but respect for you and your involvement in the Forums, and I know that you are sincere about this.

 

I actually don't like the client payment processing fee at all.

 

But I don't think it is ever appropriate to use the "i" word in this context.

 

("illegal")

 

I regard this as legalism, and I don't think it is helpful to me, to Upwork, to the community of site users as a whole, or to society.

 

I would hope that people would respect the free market system and respect Upwork enough to not suggest that Upwork is breaking that law or that it would matter if it did in a matter such as this.

 

Blast me if you need to. I get it that not everybody agrees with this position.

 

And in case anybody is wondering: No, Upwork's payment processing fee is not illegal.

Agreed, I'm sure Upwork's legal team combed all the laws and statutes to make sure they could legally do this before they implemented it.  

"Fairness is giving all people the treatment they earn and deserve. It doesn't mean treating everyone alike-Coach John Wooden"

@Katrina B wrote:

Agreed, I'm sure Upwork's legal team combed all the laws and statutes to make sure they could legally do this before they implemented it.  


For Preston I changed the wording to banned then... ok? Happy now.

 

Katrina,

 

They evidently didn't check it far enough as it is banned in several states to charge a fee. As well as Debit cards are used in processing all the time and Debit cards are not even allowed to be charged a fee.

 

I am sure other would like it addressed as well. Whether their legal department researched it or not I am curious with Upwork being in California and the ban is pending dispute if they can even do what they are doing.

 

 

 


@Katrina B wrote:

Agreed, I'm sure Upwork's legal team combed all the laws and statutes to make sure they could legally do this before they implemented it.  


They may be entitled to charge the fee or not - I don't know.

 

It's just, by your logic, (big) corporations would never brake the law - because lawyers were involved.

That's just not how it works in the real world. Corporate lawyers make mistakes every day. No matter how expensive they are.

 

After all, they get paid by their clients to make them happy. It's their job to be biased - and not an independent or fair legal entity. It's just a service.

 

There are those that are simply not very good at their trade - and others are just greedy, The latter very often get hired by equally greedy clients - that's the worst combination, which usually causes a lot of harm before it self-destructs.

Hello 

 
 
Glad to hear the new update but 20% of $500 is $100 which is ridiculously high. This will kill all small jobs on Upwork so affect the work badly. 
 
Here are some serious reactions of this action.....
 
- Any freelancer like to be 'A Freelancer' because he thinks that he gets paid better than any company's salary. Here the new people or client do not even dare to start as they will not even get breakeven salary 
 
- $10,000 per client is completely impractical. It takes ages for client throwing small projects. 
 
- People and freelancer's will be more happy to work outside Upwork. 
 
- There is big gap between $500 and $10000. For many projects, it makes no difference. 
 
- This will stop clients to choose various freelancers for different projects and they will be pushed to stick with one in order to get work in lower cost in long duration.
 
 
Finally, I never look out of Upwork as I was happy but I think its time now to start work with PPH. Remember, too much greed will destroy the beautiful marketplace. 
 
Attached is the file where Freelancer has taken the opprtunity already to hit the Upwork clients and market. 

 

Preston,

 

 The problem is that respect is hard earned and easy to lose. You shouldn't just respect something or someone based on authority or experience. That's not how respect works. If a business does something disrespectful, such as doubling a commission within the space of one month, then it's not unreasonable to lose respect for that business. To continue with that thought, once a business that has your respect, takes a disrespectful action (or at least one you deem to be so), you have to assume, either through loyalty or logic, that the action wasn't thought out well, which happens.

 

 Now, you could say a company as big as Upwork wouldn't make a legal mistake, but companies much bigger and wide spread than Upwork make mistakes every single day, sometimes they are small and irrelevant, and sometimes they are big and industry changing. I can't think of anything off the top of my head other than tech patent lawsuits at the moment, but I'm sure you've come across some cases of that.

 

 Actually, that's not true, one case I can think of is the developers of the game Payday 2. They introduced microtransactions after years of not only expressly and clearly saying they won't, but also ridiculing anybody who suggested they might. When people brought that up, they were basically told to f off, and that their opinion doesn't matter. They lost A LOT of veteran and loyal members, and brought down the game's rating from 90%+ to 73% if I remember correctly.

 

 So yeah, decisions are not made in a vacuum, especially when there are millions of people involved. Even more especially when people's livelihood is on the line. Things like mortgage payments, school payments and so on. It's essentially the same as an employer reducing your salary without any real notice, which actually is illegal in most cases.

 

 And really, this is the main part of the issue: When so much money is taken out of your income, you expect something in return. In a corporation, you get health care, maybe a pension, paid vacation and other benefits. With Upwork, you receive barely manageable service, and NOTHING ELSE. Even you personally clearly try and avoid dealing with CS, and I'm sure it's not ONLY because you don't want to tie up their resources, but also because it's hard to deal with them.

 

 There's also the issue with the free market, which you constantly bring up, and the right for businesses to conduct themselves anyway they like, which a lot of people also bring up. Well, firstly, not everybody agrees with all the concepts of free market, and second, most big businesses nowadays take a triple bottom line, and no longer simply focus on making money. Personally, I used to be big on Free Market, but then I realized that I can't rely on the morality of people to do the thing that is in the interest of the people, instead of themselves. Yeah make money, but don't screw everybody else out of it. That's neither ethical nor moral, no matter how big a company you are.

 

 So no, I'm not blasting you, I just feel that you've gotten comfortable in your intellectual position and aren't willing to look at the other side of things. Honestly, we've all gotten complacent about one thing or another, but ultimately, we are a community, and we do have to defend each other, and if another freelancer is asking a valid question about the legality of a specific practice, there's no reason to chastise them.

As an example, I know I wouldn't want to be party to illegal practices, and I think it's fair to ask why it isn't illegal when all the information I have says it is. I am most likely wrong, but when it comes to the law, it's always best to make sure.

Albert,

Thank you for your well-considered response. I really do appreciate your position, and I think you pretty much understand where I'm coming from as well.


@Albert B wrote:

 

... a lot of stuff.


 Volkswagon did it on purpose.

it doesn't matter if these fees are legal or not. Upwork says they are legal and that's what it is. because Upwork being a big company has lawyers who know that labeling it one thing, even though it may be another, is all that it takes.  And whether or not it's illegal or not, that's the way it's going to be. No one here, is going to file a lawsute.

lakitel
Ace Contributor

@Kathy T wrote:

it doesn't matter if these fees are legal or not. Upwork says they are legal and that's what it is. because Upwork being a big company has lawyers who know that labeling it one thing, even though it may be another, is all that it takes.  And whether or not it's illegal or not, that's the way it's going to be. No one here, is going to file a lawsute.


 

 I don't agree whatsoever. Companies are beholden to the laws in the countries they operate. There doesn't really need to be a lawsuit filed, only a complain made to the relevant government agency, and they investigate. For example, Steam, the biggest online distributor for games, recently had a judgment coming down from the EU about their refund policy, in which the commission said that not allowing refunds is against EU law, and they are required to provide them if they plan to continue operating in the EU. Not only that, but Electronic Arts had the same issue.

 

 As brought up a couple of posts up, Volkswagen got into a lot of trouble for lying about the emissions of their cars. There's so many cases where the laws of the country, and international laws, supersede any ToS or agreements that are signed and for good reason. You wouldn't be allowed to sign a slavery contract, and if you did, it would be legally unenforceable, even though it's been signed and witnessed. 

 

 There's a concept in law which says that any contract is interpreted to the benefit of the person who didn't write it. Not only that, but you can't put marketing spin on legal jargon and law. The law is the law, it doesn't matter how many high-priced lawyers you have, if you break it, you will pay somewhere, whether it's a fine, jail time or both.

Just remember: The "law" is just stuff that people made up.

 

So to say "the law is the law..." seems fatalistic.

 

If Upwork wants to change its business practices, and those changes would put it conflict with that law, then it is likely it is the law that should be changed or retired.

 

There are too many laws impacting business, or in other words, there are too many laws which unnecessarily restrict personal freedom.

 

If a restaurant decides to pass a law that charges a $10 fee for looking at the menu, customers should be the ones to decide whether that is acceptable, by deciding whether or not to patronize that restaurant. It should not be up to the government to tell them they can't do this.

 

For many people, it's all very well and good to try to use the power of the government, backed by armed police and military forces, to force groups of people such as companies to bend to your will... but what happens when that same power is turned against you? How would you feel if you have a blog site, and the government tells you that you can no longer post blog articles written by unlicensed writers? Or that you can no longer express your opinion about government officials on your website or on Twitter?

 

Freedom isn't really meaningful unless it includes the freedom for people to say and do really, genuinely terrible things.

 

I'm not against government or laws, but I'm definitely opposed to unnecessary laws, such as any law which would dictate the minutia of business practices by companies who exist only if people support them, and are thus easily eradicated simply if customers cease to do so.

Preston,

 

The credit card laws are there to protect the consumers. To many companies have pulled stunts or raising their rates, etc. The banks already are out of control with fees etc. Bans and Laws are there for protection purposes.

 

You comments about it should be gotten rid of is no different then you stating bans on smoking should go away because cigerettes are still legal and there are those who still smoke.

 

As far as your example of the government infringing on your blog. Depends on what you are doing on your blog. If someone subscribes to your blog in some states and gets email notifications and they are under 21. You can be fined. There are a couple states that forbid emailing a minor any type of email that is not personal.

 

I only wanted questions answered on how they were going to handle the states that have banned credit card fees and how it is going to be handled with credit card payments to multiple freelancers with a credit card. I really don't care about whether Upwork has a team of lawyers that it is fine to do because they said so...

I haven't researched this, but I suspect that if the state in which Upwork is domiciled allows for such fees, the Commerce Clause would prevent the laws of other states from being imposed on Upwork. While there is some gray area based on the company doing business in other states, albeit entirely online, the most analogous situation that comes to mind is state sales tax. Illinois law requires that a merchant collect and pay to the state a certain percentage on every retail transaction. But, if an online store based in California sells me merchandise over the Internet, he is not required to collect Illinois sales tax and submit it to the state.


@Tiffany S wrote:

I haven't researched this, but I suspect that if the state in which Upwork is domiciled allows for such fees, the Commerce Clause would prevent the laws of other states from being imposed on Upwork. While there is some gray area based on the company doing business in other states, albeit entirely online, the most analogous situation that comes to mind is state sales tax. Illinois law requires that a merchant collect and pay to the state a certain percentage on every retail transaction. But, if an online store based in California sells me merchandise over the Internet, he is not required to collect Illinois sales tax and submit it to the state.


While the appeal is pending in California they can charge fees but only to the states that do not have a ban. There is still have a ban in California on the books.

 

States Where Merchant Surcharging is Banned

 

If your business operates in any of the 10 states (CA*, CO, CT, FL, KS, ME, MA, NY, OK, TX) whose state laws prohibit surcharging, you may not charge checkout fees in that state. However, if you do business in multiple states, you may still surcharge credit card transactions in those states where the practice is not banned.

 

Hawaii, Illinois, New Jersey, and Rhode Island all have legislation pending that will ban surcharging if passed.

 

Finally, there is a loophole in these state laws which allow you to offer a discount to customers who pay by cash or check. Many gas stations, for example, already engage in this practice.

 

* As of March 2015, courts in the state of California have ruled that the ban on surcharges is unconstitutional. The Attorney General has filed an appeal, but while that is in process, a surcharge ban cannot be enforced. However, California does have laws that still apply regarding deceptive pricing, so you may want to consult an attorney if you're considering imposing a credit card surcharge on a business operating in California.   More information is available at the Office of the Attorney General of California's website. - See more at: https://www.cardfellow.com/checkout-fees-charging-credit-card-fees-to-customers/#sthash.AmdHkl5J.qP9...


@Suzanne N wrote:

 

States Where Merchant Surcharging is Banned


 You have determined that this is "merchant surcharging" as defined.... how exactly?

 

Funny how every other freelancing site charges them... are they ALL breaking the law?

 

Frankly it all comes down to wording. Call it a "client contract fee" and all is well again.

 

Petty storm in a very small teacup, frankly.

 


@Petra R wrote:

@Suzanne N wrote:

 

States Where Merchant Surcharging is Banned


 You have determined that this is "merchant surcharging" as defined.... how exactly?

 

Funny how every other freelancing site charges them... are they ALL breaking the law?

 

Frankly it all comes down to wording. Call it a "client contract fee" and all is well again.

 

Petty storm in a very small teacup, frankly.

 


There is only two definition if anyone read the links I posted on charging fees to recoup you money from bank fees. It has been stated in several threads by the mods that this was implemented because the processing fees for credit cards were to high.

 

And yes I would consider sites charging it to a state that has banned it breaking the law.

 

 


@Petra R wrote:

@Suzanne N wrote:

 

States Where Merchant Surcharging is Banned


 You have determined that this is "merchant surcharging" as defined.... how exactly?

 

Funny how every other freelancing site charges them... are they ALL breaking the law?

 

Frankly it all comes down to wording. Call it a "client contract fee" and all is well again.

 

Petty storm in a very small teacup, frankly.

 


 

 "A Surcharge is an extra fee charged by a card acceptant when paying with cheque, credit Card, charge Card or debit card (but not cash) to cover the cost of the merchant service charge."

 

 I'll also point out that you are wrong, they do not do that. No business does that, the business always eats that charge. Paypal has rules against surcharges, and so do a lot of other financial institutions, like Visa and MasterCard (which it actually is prohibited in the united states). To give you an example, it's like asking you to pay for the plumber's gas when he came to your house to fix piping, or the bank charging you the price of electricity it takes to run the building. All of these are overheads and calculated with the original price.

 

 Now, if you really want to argue against this discussion you would point out that there's a grey area here, because upwork doesn't actually charge the client anything, the client is being charged by the freelancer, and so doesn't present an original charge upon which they can charge over. That being said, it's ONLY arguable if you consider a surcharge in it's most technical definition.


@Albert B wrote:

 Now, if you really want to argue against this discussion you would point out that there's a grey area here, because upwork doesn't actually charge the client anything, the client is being charged by the freelancer, and so doesn't present an original charge upon which they can charge over. That being said, it's ONLY arguable if you consider a surcharge in it's most technical definition.


 

Actually the client is being charged and this thread should have been really in the client section.

  

 Client pricing
Your guide to understanding the changes to Upwork pricing

 

Payment processing fee
2.75% per payment

Use any billing method—credit card, debit card, or PayPal.

This fee is charged any time you make a payment on Upwork.

 

 

https://www.upwork.com/i/pricing/clients/?utm_source=responsys&utm_medium=email&utm_campaign=pricing...

 


@Preston H wrote:
- snip -


 

 I really do appreciate your Free Market stance on this, but no ideology gives a carte blanche for people to do whatever they want. As a society we have somewhat agreed to and tried to uphold a universal set of ethics and morals that we all believe will contribute to the betterment of our species and our civilization.

 

 This is why things such as theft and murder are illegal, because we have deemed them to be illegal, not because they are intrinsically good or bad. This follows your exact point, the law is made up, but it isn't made up in a vacuum, and most cases, it isn't beholden to a corporation, as much as corporation try and impose their wills, and I would say that copywrite law as in interesting philosophical study in that matter.

 

 But let me get back to your post: Your analogy has a glaring omission, which is that the restaurant is the only one for hundreds of miles around. In that case, leveraging your position to provide goods where others cannot. I think in this case (although don't quote me on it) anti-trust laws would come in to affect to stop you from charging people $10 to see the menu. In the same way, when you own such a large market share as Upwork and are hands down the best option, leveraging that power to make more money out of people could be construed as an abuse of power.

 

 The problem that I general have with your approach to this is that you are assuming a market full of equally powerful competitors that would not do immoral or unethical practices such as forming a cartel and controlling prices. In reality, that doesn't happen, and not only that, but you have businesses that are the sole providers of that service, and therefore feel fine with taking advantage of that fact.

 

 So basically, in a 'free market' political system, Donald Trump would become president, not because he deserves to be or because he is qualified to be, but because many people feel that he is the only voice they have, even if they don't necessarily support everything he says.

 

 This is where government control and rules/laws come in, so that people are, essentially, afforded the right to fair labour.

 

 Let me also say that I seem to have dumped a whole lot on the free market, so please understand that i'm not totally against it, I think competition is important and necessarily, I just don't like unfair competition, which is where I think laws/regulations should come in.

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