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davide_s
Member

Non-circumvention and the 2+ year rule for new employers from referrals

Say I start working for A (which I did not have any contact outside Upwork before), then my contract ends and before 2 years are up I get another job offer through a referral/former co-worker. Let's call them employer B.

What I'm reasonably sure about: once I accept B's offer, payment must happen through Upwork since this new job counts as "arising out of your relationship with that person[the former employer]"


What I'm not sure about: when I reach 2+ years since I was first contacted by employer A (through which I indirectly got the job with B), can I start accepting payments from B outside upwork, too?

Since this more recent work relationship arose from one that is no longer subject to the non-circumvention rule, that sounds like a reasonable interpretation to me.
But I'd like to be 100% sure, and that's why I'm asking.

8 REPLIES 8
bstojadinovic
Community Manager
Community Manager

Hi Davide,

 

You can refer to Section 7 of the User Agreement for detailed information. Please note that if you identified or were identified by any party on Upwork, you agree "to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party" on Upwork for 24 months.

 

Thank you! 

~ Bojan
Upwork

Thanks, but I've read that section and it's not really clear to me how it works in cases like this.

I'll try to rephrase my question:
Let's say I'm identified on Upwork by A on January 1, 2021 and start working for them. 
Then, on December 1, 2022 (so after 1 year 11 months, not 2 years) I get a job offer from someone connected to employer A (let's call them employer B) because A referred me to them.
I understand that, if I accept, I will have to be paid through Upwork.

What I don't understand is:
how long until I can accept payment outside Upwork from B? Do I need to wait December 2, 2023 (because this new job connection arouse out employer A)
OR does this count as a new relationship for purpose of the rule, so I need to wait another 2 years since the start of this new work relationship?

Hi Davide,

 

I would like to confirm that you will still need to receive your payments on Upwork for the next 24 months and after that, you can accept payments outside of Upwork as well. For more details about this, please refer to the section of our TOS Bojan has linked in his post. Thank you.

~ Goran
Upwork

Goran, the explicit question, which should get an explicit answer, is: What is the starting point for "the next 24 months"? (Also, please note that the question is hypothetical.)

Hi Davide,

 

I'd like to clarify that the non-circumvention period starts when the client/freelancer pair first identify each other. So in the case of the referral, it would start when then person making the referral sends the information of the referree to the other person.

 

Thank you! 

~ Bojan
Upwork

Thanks, Bojan, for the follow up.

 

Regardless of the fact that some of us think Upwork's position on referrals is untenable and legally indefensible, it's good to have the company's interpretation and implicit effects of that position clearly articulated.

Thanks for the clarification, but I do have a follow-up question: what if the referral/new job offer is to/from someone the freelancer became acquainted/was identified by (perhaps outside Upwork) in the process of performing their job? 
Such as a coworker or client/associate/business partner of the employer.

Can the 2-year timer can start from the moment the two parties start interacting, even if, at the time, there is no expectation of one part employing the other? Consider this:

January 1 2021: Freelancer is identified by employer A
January 1 2022: Freelancer becomes acquainted with B (while working for A); they talk to each other for job purposes, might have each other contact info, and so on. 
January 1 2023: Freelancer is referred to B by employer A, or B spontaneously offers the freelancer a new job.

At what point can the freelancer accept payment outside Upwork from B?
Based on your answer, I'm leaning towards January 2 2024 , so 2 years+1 day (just to be extra safe) since initial contact with B.  Is my interpretation correct?

Tiffany S: it does feel quite restricting and unclear at times, yes.
I do hope at some point it will be made less strict, or maybe the 2-year timer could be shortened to just 1 year.  However, as long as it exists, I'm doing my best to follow it...

 

tlsanders
Member


Davide S wrote:


Since this more recent work relationship arose from one that is no longer subject to the non-circumvention rule, that sounds like a reasonable interpretation to me.


You would think they couldn't have it both ways, but having already twisted the language of the TOS into knots, stood it on its head and set it on fire to arrive at the bizarre interpretation that allows them to control your referral chain in perpetuity, I guess it's no surprise that the relationship is deemed both "arising out of" and "completely new." 

 

Eagerly awaiting the day someone litigates this provision.

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