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Subcontracting - the Right Way to Do It

f9f08439
Active Member
Pavel T Member Since: Aug 7, 2017
21 of 37

Valeria, is there no requirement to get client to explicitly agree to the work being subcontracted anymore? Wording seems to be very different from the old version.

wendy_writes
Community Guru
Wendy C Member Since: Aug 24, 2015
22 of 37

Pavel,  the calibre and 'understandability' of language in ToS is far from stellar. So you aren't alone in  trying to determine what is what.  That said - 

 

Best business practice would be to inform clients before you subcontract - always.  Honesty wins the day in every respect. Clients expect nothing less.

kochubei_valeria
Community Manager
Valeria K Community Manager Member Since: Mar 6, 2014
23 of 37

Hi Pavel,

 

It is and has always been up to users on whether to agree to subcontracting. It is up to you and your client to agree on whether subcontracting is allowed or not on your fixed-price contracts. It is also up to you and your clients whether or not to agree to the Optional Service Contract Terms. Subcontracting isn't allowed on hourly projects on Upwork because of the way the billing works - it isn't possible to bill another freelancers hours accurately under your account as the hours would wrongly look like your hours.

~ Valeria
Upwork
prestonhunter
Community Guru
Preston H Member Since: Nov 24, 2014
24 of 37

I agree with Wendy about best practices and professionalism.

 

For those of us using this Forum and reading this thread... Upwork's ToS language regarding sub-contracting is essentially irrelevent.

 

Because we know there is no way to "sub-contract" using an hourly contract and still be professional and fair to the client.

 

And we would not sub-contract while doing fixed-price projects without informing the client. Regardless of what Upwork allows.

charles_kozierok
Community Guru
Charles K Member Since: Mar 6, 2017
25 of 37

"Because we know there is no way to "sub-contract" using an hourly contract and still be professional and fair to the client."

 

Why do you say that? I discussed this with a client, and while we ended up going in a different direction, he would have been quite happy with it.

prestonhunter
Community Guru
Preston H Member Since: Nov 24, 2014
26 of 37

I'm not sure what to tell you, Charles.

 

Upwork prohibits sub-contracting using hourly contracts.


Why? In my opinion, it is not because of professional, concientious freelancers such as yourself, but because scoundrels and scammers have caused so many problems in the past while doing this.

 

For myself, I would not think of trying hire a sub-contractor to do a job I was hired to do, and then try to log time on my account to get paid for the work the sub-contractor did.

 

The whole concept just seems rife with problems. And not transparent.

 

I would instead suggest to the client that it would be better to hire somebody else to do this part of the project, and have the client hire and pay the freelancer directly through Upwork.

charles_kozierok
Community Guru
Charles K Member Since: Mar 6, 2017
27 of 37

"Upwork prohibits sub-contracting using hourly contracts."

 

Well, it used to. There's no longer any wording to this effect in any TOS document I can find.

 

This adds to the confusion about work product. Changes get made and we aren't informed. Upwork has the legal right to do that, but is it good for anyone?

 

"Why? In my opinion, it is not because of professional, concientious freelancers such as yourself, but because scoundrels and scammers have caused so many problems in the past while doing this."

 

Oh, I could perfectly understand prohibiting it for that reason, just wanted to say that there are legitimate applications here, even if they are uncommon.

 

"I would instead suggest to the client that it would be better to hire somebody else to do this part of the project, and have the client hire and pay the freelancer directly through Upwork."

 

This is in the past, but the issue had to do with management. Especially for certain types of work, it can make more sense for a client to hire experienced freelancer A to handle subbing out to newbie freelancers B, C, and D, than having the client do it.

dillon88
Active Member
Dillon V Member Since: Jun 9, 2020
28 of 37

I have found that Charles's comment to be a valid point. After reviewing the legal agreement listed in the Upwork Legal Center, effective April 3, 2020, it states the following in clause (vii) of section 2.1:

 

"(vii) Upwork does not provide the premises at which Freelancers will perform the work. Freelancers are free to use subcontractors or employees to perform Freelancer Services and may delegate work on fixed-price contracts or by agreeing with their Clients to have hourly contracts for Freelancer’s subcontractor(s) or employee(s);"


Current User Agreement 

I would like to know this information for myself included.
It is to my understanding of the documentation defined by this user agreement (see link above) that I may submit a proposal for either fixed-price or hourly-based contracts, and if, at a minimum, I clearly state to the client (when the job is hourly-based) that I will be sub-contracting work, and said client agrees to the conditions, then the sub-contracting of hourly-based contracts is permissible and does not violate the terms and conditions of the user agreement.

Is this correct?
If so, are the sub-contractors required to have an Upwork account as well so that they can be displayed on the contractual agreement?

If correct and they don't require an Upwork account, I assume that I would just need to provide (for example) let's say a W-8BEN document on their behalf (as opposed to them providing one on their own account)? Would this show on my account, and visible for sub-contractual use on contractual agreements?

Thank you

markh44
Active Member
Mark H Member Since: May 23, 2018
29 of 37

Valeria K wrote:

Hi Pavel,

 

It is and has always been up to users on whether to agree to subcontracting. It is up to you and your client to agree on whether subcontracting is allowed or not on your fixed-price contracts. It is also up to you and your clients whether or not to agree to the Optional Service Contract Terms. Subcontracting isn't allowed on hourly projects on Upwork because of the way the billing works - it isn't possible to bill another freelancers hours accurately under your account as the hours would wrongly look like your hours.




 

HI Valarie, Can you please direct me where it says this?

The way I read: https://www.upwork.com/legal#optional-service-contract-terms - it says "The manner and means of performing the Freelancer Services will be determined and controlled solely by Freelancer, which is engaged by Client as an independent contractor. " That same area says we can use subcontractors for projects and says nothing about the types of contracts (fixed or hourly) we can use subcontractors for?

I am just looking for clarity because there are a lot of times in webdesign, I have to engage third parties to complete work for a client.. IE.. host, tech support, etc.

tinker_bell3
Moderator
Joanne Marie P Moderator Member Since: Nov 26, 2017
30 of 37

Hi Mark,

 

The information about subcontracting is also noted here, which you can find under section 2.1 RELATIONSHIP WITH UPWORK. vii) Upwork does not provide the premises at which Freelancers will perform the work. Freelancers are free to use subcontractors or employees to perform Freelancer Services and may delegate work on fixed-price contracts or by agreeing with their Clients to have hourly contracts for Freelancer’s subcontractor(s) or employee(s); and (viii) Upwork does not provide shipping services for any physical Work Product. If a Freelancer uses subcontractors or employees, Freelancer further agrees and acknowledges that this Section applies to Upwork’s relationship, if any, with Freelancer’s subcontractors and employees as well and Freelancer is solely responsible for Freelancer’s subcontractors and employees.

~ Joanne
Upwork
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