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Opt out fee

lauraivie
Ace Contributor
Laura I Member Since: Apr 7, 2016
1 of 37

In light of the new pricing, I'm curious if anyone knows what the opt out fee is that I have heard about?

lanwanman
Community Guru
Ronald T Member Since: Sep 14, 2009
2 of 37

Considering the significant changes brought about by the new fee structure, I wonder if the opt out requirement would be determined by an arbitrator as enforceable. That is, if actions were taken within a reasonable time from the start of the new fee structure -- or prior to its implementation.

Ron aka LanWanMan
tlbp
Community Guru
Tonya P Member Since: Nov 26, 2015
3 of 37

I thought this as well. The language is very vague and overbroad, IMO. Not that I feel like raising a legal challenge, but I do wonder how a court would interpret some of the less than clear phrasing.

tlsanders
Community Guru
Tiffany S Member Since: Jan 15, 2016
4 of 37

@Ronald T wrote:

Considering the significant changes brought about by the new fee structure, I wonder if the opt out requirement would be determined by an arbitrator as enforceable. That is, if actions were taken within a reasonable time from the start of the new fee structure -- or prior to its implementation.


The "significant changes" are that a freelancer may, at most, be required to pay an additional $50 in fees per client.

 

The suggestion that this change would be significant enough to void obligations under the contract would provide a good laugh at the coffee shop across from the courthouse, but have little other impact. 

lakitel
Ace Contributor
Albert B Member Since: Apr 11, 2016
5 of 37

@Tiffany S wrote:

@Ronald T wrote:

Considering the significant changes brought about by the new fee structure, I wonder if the opt out requirement would be determined by an arbitrator as enforceable. That is, if actions were taken within a reasonable time from the start of the new fee structure -- or prior to its implementation.


The "significant changes" are that a freelancer may, at most, be required to pay an additional $50 in fees per client.

 

The suggestion that this change would be significant enough to void obligations under the contract would provide a good laugh at the coffee shop across from the courthouse, but have little other impact. 


 

 Its actually completely irrelevant what the amounts are. You say $50 increase, I say 100%, either way, there is a significant increase to what it used to be, even if you might not think that this is the case. Now, I will admit that this lands in a grey area of the law, but there is such a concept in law of actions taken in bad faith, even if they aren't technically illegal. To a large extent, e-business law is still in it's infancy, and there is potential for jurists or judges to find that being bound to a contract that can be changed without notice by one party but not the other, is illegal.

 

 To bring in an example, think of student loans, where the loans usually carry a variable interest rate that can be changed on a whim by the lender. Laws are slowly starting to come into effect to curb this practice. ToS and EULAs are similar, in that you are tied to an agreement that you have no choice but to follow, even if the agreement changes. Sure, some sites ask you to accept the new agreement before doing any more work on the website, but quite a few don't, and in Upwork's case, I don't see how they could legally deny you from accessing the site to withdraw your payments if you don't accept the new ToS.

 

 So really, I think the coffee shop across the street would be empty, because everybody is in the courthouse trying to figure this mess out.

tlsanders
Community Guru
Tiffany S Member Since: Jan 15, 2016
6 of 37

@Albert B wrote:

@Tiffany S wrote:

@Ronald T wrote:

Considering the significant changes brought about by the new fee structure, I wonder if the opt out requirement would be determined by an arbitrator as enforceable. That is, if actions were taken within a reasonable time from the start of the new fee structure -- or prior to its implementation.


The "significant changes" are that a freelancer may, at most, be required to pay an additional $50 in fees per client.

 

The suggestion that this change would be significant enough to void obligations under the contract would provide a good laugh at the coffee shop across from the courthouse, but have little other impact. 


 

 Its actually completely irrelevant what the amounts are. You say $50 increase, I say 100%, either way, there is a significant increase to what it used to be, even if you might not think that this is the case. Now, I will admit that this lands in a grey area of the law, but there is such a concept in law of actions taken in bad faith, even if they aren't technically illegal. To a large extent, e-business law is still in it's infancy, and there is potential for jurists or judges to find that being bound to a contract that can be changed without notice by one party but not the other, is illegal.

 

 To bring in an example, think of student loans, where the loans usually carry a variable interest rate that can be changed on a whim by the lender. Laws are slowly starting to come into effect to curb this practice. ToS and EULAs are similar, in that you are tied to an agreement that you have no choice but to follow, even if the agreement changes. Sure, some sites ask you to accept the new agreement before doing any more work on the website, but quite a few don't, and in Upwork's case, I don't see how they could legally deny you from accessing the site to withdraw your payments if you don't accept the new ToS.

 

 So really, I think the coffee shop across the street would be empty, because everybody is in the courthouse trying to figure this mess out.


It is, of course, not irrelevant how large the increase is--that's what determines "significant". This is in fact not a gray area at all, because it's a simple matter of contract law. While it's true that there are many areas of e-commerce that are unclear under existing law, this is not one of them; there is nothing about this situation that is specific to the Internet or the digital nature of our communications.

 

Your suspicion that legal professionals would be scratching their heads and haggling over this raises a ssupsicion in me that you are either not an attorney or not familiar with the American legal system.

lakitel
Ace Contributor
Albert B Member Since: Apr 11, 2016
7 of 37

@Tiffany S wrote:

 It is, of course, not irrelevant how large the increase is--that's what determines "significant". This is in fact not a gray area at all, because it's a simple matter of contract law. While it's true that there are many areas of e-commerce that are unclear under existing law, this is not one of them; there is nothing about this situation that is specific to the Internet or the digital nature of our communications.

 

Your suspicion that legal professionals would be scratching their heads and haggling over this raises a ssupsicion in me that you are either not an attorney or not familiar with the American legal system.


  Actually, the whole amounts thing was my bad, it wasn't a very good way of phrasing what I meant to say, which is that $50 might not be significant to you, and yet might be significant to somebody else. Ultimately that would be decided by the lawyers and the judges involved in the case. You also have to think in terms of quantity of clients: If you have 10 clients a month, that's $500, if you have 20, it's $1000. At that point, I would describe the change as "Significant".

 

 I will also freely admit that I am not a lawyer, and I would probably assume that you aren't either, so there's no point to bringing that up. Ultimately, it's just conjecture unless specific precedent or written law can be given to back up an argument. Of course, you could be a lawyer, in which case I defer to your legal expertise.

 

I will also freely admit that I am not an expert on the American legal system, as I don't actually live in America, that's why I was referencing the EU and international laws, which can supersede national laws, although in the American legal system, then can pretty much say they don't give a **bleep** what the international law says. That's the thing though, Upwork doesn't only service the U.S. and so they actually have to cater to several different set of laws, and this is where they may have, reasonably, failed.

tlsanders
Community Guru
Tiffany S Member Since: Jan 15, 2016
8 of 37

I am, Albert--or was. I haven't practiced in many years, but many of my long-term jobs involve ghostwriting for lawyers and writing legal education materials for both lawyers and those preparing for the bar exam, so my knowledge is pretty current.

 

That, of course, doesn't mean that I'm right about every legal issue. But, I have done recent extensive research and writing on the Uniform Commercial Code, so I'm pretty sure on this one.

lakitel
Ace Contributor
Albert B Member Since: Apr 11, 2016
9 of 37

@Tiffany S wrote:

I am, Albert--or was. I haven't practiced in many years, but many of my long-term jobs involve ghostwriting for lawyers and writing legal education materials for both lawyers and those preparing for the bar exam, so my knowledge is pretty current.

 

That, of course, doesn't mean that I'm right about every legal issue. But, I have done recent extensive research and writing on the Uniform Commercial Code, so I'm pretty sure on this one.


  Unfortunately, the UCC only covers the states and the globe, at least to my understand. I will say that they might have taken inspiration from international law, but again, I would have to acquiesce to your legal expertise. I think I'll bow out to you with the understanding that this post covers U.S. law, and that your comments may not be true in cases outside the U.S.

tlsanders
Community Guru
Tiffany S Member Since: Jan 15, 2016
10 of 37

Agreed, Albert. However, I am assuming (and I haven't checked, so I could be wrong) that the Upwork contract includes a choice of law provision that is U.S.-based.

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