Referring someone to a person NOT on UW

[#1]

I recently had a potential client reach out about a possible job. After some basic discussion I realized that the job was not a good fit for my skills but would be an excellent fit for someone I know. The someone though is not a freelancer on UW. My question is whether anyone knows if it's allowed that I make this referral? I have read the ToS (again) and the closest issue I can find is under Non-Circumvention with the bullet:

• Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.

The issue here though is that I did not identify the user but rather that user (the client) reached out to me. Second, I am not representing this person that isn't on the platform. He is just someone I know and there is no payment of any kind that would be coming to me. 

Any thoughts on whether this actually runs afoul here? For now I have not made the referral in order to err on the side of caution.

[#2]

Scott, I certainly hope you're permitted to do this without running afoul of a non-circumvention clause. Let's say hypothetically that your referral has to be on Upwork, so that person applies for an Upwork account, and Upwork doesn't approve their application. Then what? Upwork can in effect deny the person the right to work for the client simply because the client contacted you by way of Upwork? That seems unjust to me. Although perhaps the client can invite and hire the freelancer even though the freelancer's account isn't approved?

[#3]

Hi Scott,

It would be considered circumvention as the client learned about the referred freelancer through Upwork. The referred freelancer can join Upwork, independently or through Bring Your Own Freelancer program, or the client can pay the Opt Out Fee.. 

[#4]

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Valeria K wrote:

Hi Scott,

It would be considered circumvention as the client learned about the referred freelancer through Upwork. The referred freelancer can join Upwork, independently or through Bring Your Own Freelancer program, or the client can pay the Opt Out Fee.. 

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Thanks, Valeria. I must say this is pretty harsh. Paying an "opt-out" fee for someone who has nothing to do this site is pretty brutal. Can you point to where this is addressed in the ToS? It seems difficult to believe that I am barred from talking to any client or potential client about anyone else in the world not on UW that provides a service. As an extreme example, what if I gave a client the name of my dentist who doesn't use UW? I know this sounds silly but where does UW draw the line and what part of the agreement speaks to this in greater detail? 

Obviously I will withhold the recommendation here and I appreciate getting an official answer, but more information on this from UW would be appreciated.

[#5]

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Scott B wrote:

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Valeria K wrote:

Hi Scott,

It would be considered circumvention as the client learned about the referred freelancer through Upwork. The referred freelancer can join Upwork, independently or through Bring Your Own Freelancer program, or the client can pay the Opt Out Fee.. 

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Thanks, Valeria. I must say this is pretty harsh. Paying an "opt-out" fee for someone who has nothing to do this site is pretty brutal. Can you point to where this is addressed in the ToS? It seems difficult to believe that I am barred from talking to any client or potential client about anyone else in the world not on UW that provides a service. As an extreme example, what if I gave a client the name of my dentist who doesn't use UW? I know this sounds silly but where does UW draw the line and what part of the agreement speaks to this in greater detail? 

Obviously I will withhold the recommendation here and I appreciate getting an official answer, but more information on this from UW would be appreciated.

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It IS difficult to believe--it's outrageous, and quite possibly unenforceable. But, since Upwork has repeatedly stated that they'll be enforcing the term that way, and it will likely take long-term litigation to fix the provision, most freelancers will have to protect themselves by never doing business with anyone connected to anyone they've worked with through Upwork outside the platform...a system that plays out in perpetuity, since each new referral kicks off a 2-year lock-in with that client/freelancer AND any referrals stemming from that relationship...and so on, and so on, for the rest of your life.

This is the reason I stopped taking on new Upwork clients. It sucks to have to turn down good potential clients and referrals, which has happened a couple of times already, but the only way to break the chain is to accept no new Upwork clients or referrals from existing Upwork clients.

[#6]

Valeria, what you just articulated is at odds with the TOS. Please note that the cited item in the TOS includes intentionality, implicitly for the purpose of circumvention.

[#7]

I found this old thread, as referrals to third parties comes up quite often in my business. From what I'm reading we can refer the client to anyone, as long as we suggest to any off-site freelancer that they join Upwork. If the freelancer decides not to join, or isn't approved, then that would not be our problem. We didn't refer them for the purposes of making payments off the site, we referred them for the purposes of suggesting they join. Would like to know from UM if I'm on the right track here. 

[#8]

This is crazy. Is this still true??