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Identity Verification

Active Member
Aysha S Member Since: Feb 16, 2018
1 of 13

Hello,

 

I am an oversee  employee of an Italian company.I am working as a recruitment  consultant on the behalf of my company.As my company location and my location are different i am  going through a tough verifaction process.They told me to upoad my ID and other details now is it fine and safe to upload those documents?

 

Please Guide.

Thanks

Active Member
Kaustubha G Member Since: Feb 16, 2018
2 of 13

Unless the company asking you to upload your personal details has an office in your home country, there is no need for them to verify your details. No need to provide them with anything especially the ones that are linked to financial information. Upwork/Elance or the companies participating on this platform have been reported to several authorities for flouting local laws and they are simply scrupulous and fraud. Do not provide them your personal information like driving license, passport etc. any time.

Moderator
Avery O Moderator Member Since: Nov 23, 2015
3 of 13

Hi Aysha, 

I checked and can see that you are being requested by the Trust & Safety Team. It should be safe to upload the documents in the secure link that was sent to you via email. 

Upwork takes commercially reasonable steps to help protect and secure the information it collects and stores about Upwork Users. All access to the Site is encrypted using industry-standard transport layer security technology (TLS). When you enter sensitive information (such as tax identification number), we encrypt the transmission of that information using secure socket layer technology (SSL). We also use HTTP strict transport security to add an additional layer of protection for our Upwork Users. 


-Avery
Untitled
Active Member
Kaustubha G Member Since: Feb 16, 2018
4 of 13

Upwork does not have an office in India legally. My personal identification is not a property to be looked into by Upwork or any non-governmental entity that are not present in India. You might have the tightest and most secure database protection in the world but as per Indian laws we are not allowed to share our personal information. Has anyone from USA provided their Social Security Number to Indian companies ? Have you ever heard of that ? If that's true then it's a violation of respective statutes. Hence I will not willfully provide my details to anyone especially when there is a legal framework present and law does not allow any outsider to provide my personal demographic information.

Active Member
Kaustubha G Member Since: Feb 16, 2018
5 of 13

For the demographic detail that I have already shared with Upwork so far, do not worry they have been reported to Government Authorities here in India for violation of privacy. Elance/Upwork will soon be made a party to a dispute if required for such repeated violations.

Moderator
Avery O Moderator Member Since: Nov 23, 2015
6 of 13

I'm sorry you feel this way, Kaustubha. 

Please know that when you signed up for an Upwork account, you have agreed to provide us with information that may be required to verify your identity. In Section 3.3 Identitiy Verification of the Upwork User Agreement, it states that ... "You authorize Upwork, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial accounts, subject to applicable law.  When requested, you must provide us with information about you and your business."

You may also want to check our Privacy Policy for more information.

To clarify what I noted on my answer to Aysha regarding tax information, the tax information is required for U.S. persons via the W-9 form available on a U.S. freelancer's user settings. For non-U.S. residents, freelancers are required to fill in the W8-BEN form, which essentially signifies that the freelancer is not a U.S. taxpayer and that Upwork is not required to withhold taxes from your earnings. 


-Avery
Untitled
Active Member
Kaustubha G Member Since: Feb 16, 2018
7 of 13

Hello Avery,

 

Sorry for the late reply. I find nothing wrong with your privacy policy but it's more US-centered, botched and has complete reckless disregard to non-US laws (in my case Indian laws).

 

For instance, for your statement :

 

For non-U.S. residents, freelancers are required to fill in the W8-BEN form, which essentially signifies that the freelancer is not a U.S. taxpayer and that Upwork is not required to withhold taxes from your earnings.

 

I believe and have full evidence that UpWork is carrying out illegal activities in the name of freelancing by engaging/letting them engaged with other companies.

 

Why the heck on this earth do Indian citizens fill out and provide you W8-BEN form which is meant only for US Government ? Why does Upwork (previously Elance) not provide Form 16/16A to employees/contractors from India ? We do not require W8-BEN to provide it to Indian government but rather we require Form 16/16A to be provided to them and file them in our income tax returns.

 

When we are hired online and revenue is accrued online for the services we provide from India(OR non-US countries) why only US laws are applied in the working relationship ? Makes sense ?

 

As per Indian laws, Upwork needs to have a registered office in India. Have a doubt ? Check this :

 

Companies Act 2013, Government Of India : Refer to section 380 read with section 2(42) of Companies Act, 2013, India.

 

Ultimately the foreign companies have to comply with provisions of Chapter XXII of the Act.

Below is Section 380 of the Act :

 

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380. Documents, etc., to be delivered to Registrar by foreign companies.

 

1. Every foreign company shall, within thirty days of the establishment of its place of business in India, deliver to the Registrar for registration—

 

a. a certified copy of the charter, statutes or memorandum and articles, of the company or other instrument constituting or defining the constitution of the company and, if the instrument is not in the English language, a certified translation thereof in the English language;

b. the full address of the registered or principal office of the company;

c. a list of the directors and secretary of the company containing such particulars as may be prescribed;

d. the name and address or the names and addresses of one or more persons resident in India authorised to accept on behalf of the company service of process and any notices or other documents required to be served on the company;

e. the full address of the office of the company in India which is deemed to be its principal place of business in India;

f. particulars of opening and closing of a place of business in India on earlier occasion or occasions;

g. declaration that none of the directors of the company or the authorized representative in India has ever been convicted or debarred from formation of companies and management in India or abroad; and

h. any other information as may be prescribed.

 

2. Every foreign company existing at the commencement of this Act shall, if it has not delivered to the Registrar before such commencement, the documents and particulars specified in sub-section (1) of section 592 of the Companies Act, 1956, continue to be subject to the obligation to deliver those documents and particulars in accordance with that Act.

 

3. Where any alteration is made or occurs in the documents delivered to the Registrar under this section, the foreign company shall, within thirty days of such alteration, deliver to the Registrar for registration, a return containing the particulars of the alteration in the prescribed form.

 

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Note the term "Every foreign company".

 

As per the Act, Section 2(42) says :

 

2.

42. “foreign company” means any company or body corporate incorporated outside India which—

 

a. has a place of business in India whether by itself or through an agent, physically or through electronic mode; and

b. conducts any business activity in India in any other manner.

 

***********************************************************************************************************

 

The Companies Act has drastically expanded the definition of Foreign Companies to include those foreign companies as well that are doing business in India through electronic mode. As discussed earlier, Rule 2 (c) defines ‘electronic mode', which definition is wide enough to cover virtually every transaction carried through electronic mode including through e-mail, mobile devices, social media, cloud computing, document management, voice or data transmission or otherwise. Such a wide coverage on transactions done through electronic modes is, therefore, likely to have a great impact on various foreign companies involved in transactions such as consultancy services, financial services, e-commerce etc. with their customers in India that would be required to establish a permanent place of work in India through registration, in order to continue to operate in the country.

 

Currently, there are a number of foreign based websites that operate directly or indirectly in India and may be said to have a place of business in India through electronic mode such as Amazon.com, Rakuten.com etc. (the above companies in our list are also included), where customers located in India can purchase products and get the shipment in India. Moreover, ebooks, software, or subscription to e-magazines, dailies or subscription of other members only websites could be purchased online at many websites that need no physical shipment to India.

 

The New Act specifically provides that in order to ascertain the place of business in India through electronic mode, the main server is not required to be installed in India. Also the Act provides for enlarging the scope of electronic transactions. Even workers who are Indian citizens and who provide services to these companies from India (using Internet) are also covered by the Act. Why ? Because even when the company not present in India, the context of master-servant relationship exists in the service transaction from which revenue is accrued directly from the Indian territory. Although workers/Indian Citizens would be considered as workers of the above companies alone for the applicability of laws, it's the companies that are generating revenue out of it. Therefore even if they are operating from USA/Canada/foreign lands, it's the automatic applicability of the section 380 and 2(42) that renders them as foreign companies liable to withhold and pay tax from your pay.

 

The bare perusal of the provisions of the New Act (esp. section 380 and section 2 (42) along with prescribed Rules) suggests that even a single transaction conducted in India by a foreign company would be sufficient to infer that such foreign company has established a place of business in India. Such an interpretation would lead to undesirable consequences as any foreign company e.g. a consultancy company based outside India would require registration in India even if it undertakes only one single transaction in a whole year. Imagine a situation where a customer in India buys an application or software worth $1 on a foreign based marketplace websites like google play store that may not be registered in India. The marketplace websites could have sellers that are also not registered in India as per the requirement of section 380. In such a case, it would be absurd to expect that for the sale of a $1 product/service both the seller company as well as the marketplace owner company be required to get registered under the New Act. However, as absurd as it may appear, the bare interpretation of the New Act leads to this conclusion. 

 

So from above, it is clear that foreign companies must comply with the provisions of the Companies Act, 2013 in respect to the business as if it were a company incorporated in India.

 

When that's the case, what is the validity of your agreements when they are brought up in Courts Of Law in India ? Do they even stand valid to be admitted as evidence in the matter of any dispute ? Do they observe the principles of natural justice per se ? I have seen and experienced a lot of fraud and illegal activities through your platform. Don't you think there are Courts to adjudicate upon serious disputes and not just your arbitration processes ? Think again. We are agreeing to your policies not just for the sake of your compliance with US Government but also for our compliance with our Government and laws of the land.

 

As of today, we are not allowed to provide our Aadhaar ID (or any linked Identity cards) to anyone outside India (not even to private entities in India. It's illegal to share our Aadhaar ID to Upwork or any non-Government organization (even if that's FBI/CIA).

 

Refer to the sections below taken from Aadhaar Act :

 

********************************************************************************************

 

8.

(1) The Authority shall perform authentication of the Aadhaar number of an Aadhaar number holder submitted by any requesting entity, in relation to his biometric information or demographic information, subject to such conditions and on payment of such fees and in such manner as may be specified by regulations.

 

(2) A requesting entity shall—

(a) unless otherwise provided in this Act, obtain the consent of an individual before collecting his identity information for the purposes of authentication in such manner as may be specified by regulations; and

(b) ensure that the identity information of an individual is only used for submission to the Central Identities Data Repository for authentication.

 

(3) A requesting entity shall inform, in such manner as may be specified by regulations, the individual submitting his identity information for authentication, the following details with respect to authentication, namely:—

(a) the nature of information that may be shared upon authentication;

(b) the uses to which the information received during authentication may be put by the requesting entity; and

(c) alternatives to submission of identity information to the requesting entity.

 

(4) The Authority shall respond to an authentication query with a positive, negative or any other appropriate response sharing such identity information excluding any core biometric information.

 

 

********************************************************************************************

 

Now regarding other Identity information like Driving License, PAN, etc. they are all going to be linked with Aadhaar. This clearly violates the basic security principles provided by Aadhaar. In India if services are denied for the lack of providing Aadhaar, it's a crime. Now if you/Upwork has my driving license, it can very easily in the coming days be use to find out my Aadhaar information, which is again illegal. How will Upwork be able to find it out ? Well because all our identity cards are going to be linked to Aadhaar. That's a huge security and privacy issue that Government of India has been dealing with. Hence it's not advisable to share any personal information to Upwork/it's clients unless they have a registered office in India so that in case of any violation, the culprits from India are brought to book. No need to worry, even if Upwork doesn't have any office in India, Courts of law have capacities beyond limits and anyone can question Upwork anytime if any violation is observed.

Moderator
Goran V Moderator Member Since: Mar 24, 2017
8 of 13

Hi Kaustubha,

Thank you for raising your concerns, we take our compliance obligations seriously and always appreciate any member of our community flagging potential issues.  We understand you have already raised your concerns to Upwork through several different channels and we have looked into them and are confident we remain compliant.   
 
Upwork’s identity verification procedures are in place to help maintain Upwork as a safe marketplace and the W9 information is required by US law, which governs Upwork.  Of course, we understand that you may have a different comfort level with sharing your personal information.  If that is the case or if you decline to share the information for any other reason, you are free to not share your information with Upwork, but if you make that decision we unfortunately can not allow you to continue  to use the Upwork marketplace.

Untitled
Active Member
Kaustubha G Member Since: Feb 16, 2018
9 of 13

Hello Goran 

 

Sorry to see that despite explaining so much you are not following what I have been trying to convey. If that was a matter of mere "comfort levels" I would have been the first person to give my identity information without any hesitation. But it's about compliance with Indian laws. Refer to the KYC Directions given below :

 

https://www.rbi.org.in/scripts/NotificationUser.aspx?Id=10292&Mode=0

 

Refer to the applicability of the KYC directions in that Master Direction :

********************************************************************************************
2. Applicability

(a) The provisions of these Directions shall apply to every entity regulated by Reserve Bank of India, more specifically as defined in 3 (b) (xiii) below, except where specifically mentioned otherwise.

(b) These directions shall also apply to those branches and majority owned subsidiaries of the REs which are located abroad, to the extent they are not contradictory to the local laws in the host country, provided that:

i. where local applicable laws and regulations prohibit implementation of these guidelines, the same shall be brought to the notice of the Reserve Bank of India.

ii. in case there is a variance in KYC/AML standards prescribed by the Reserve Bank of India and the host country regulators, branches/overseas subsidiaries of REs are required to adopt the more stringent regulation of the two. Branches/subsidiaries of foreign incorporated bank may adopt the stringent regulation of the two i.e. standards prescribed by the Reserve Bank of India and their host country regulators.

 

Provided this rule shall not apply to ‘small accounts’ referred to in Section 23 of Chapter VI.

********************************************************************************************

 

As you can see the regulations are applicable to only RE's that is "Regulated Entities". As per the definition of Regulated Entities in the same "Master Direction" it says :

 

********************************************************************************************

xiii. “Regulated Entities” (REs) means

a. all Scheduled Commercial Banks (SCBs)/ Regional Rural Banks (RRBs)/ Local Area Banks (LABs)/ All Primary (Urban) Co-operative Banks (UCBs) /State and Central Co-operative Banks (StCBs / CCBs) and any other entity which has been licenced under Section 22 of Banking Regulation Act, 1949, which as a group shall be referred as ‘banks’

b. All India Financial Institutions (AIFIs)

c. All Non-Banking Finance Companies (NBFC)s, Miscellaneous Non-Banking Companies (MNBCs) and Residuary Non-Banking Companies (RNBCs).

d. All Payment System Providers (PSPs)/ System Participants (SPs) and Prepaid Payment Instrument Issuers (PPI Issuers)

e. All authorised persons (APs) including those who are agents of Money Transfer Service Scheme (MTSS), regulated by the Regulator.

********************************************************************************************

I am assuming applicability of direction xiii(e) mentioned above to be the least one where compliance might be required so that I can provide my identity information. That's the reason I provided Elance Escrow my bank information because it's regulated I believe. As per my knowledge, Elance/Upwork does not fall in the category of above "Regulated Entities" defined as per KYC directions mentioned above. If you have approval from Reserve Bank Of India for knowing the identity information of your customers, please provide a copy of the authorization document that are applicable to Indian citizens.

As you can see, I am not satisfying my comfort levels here per se. It's the law that's prohibiting me to provide such information to foreign companies that I need to adhere with due diligence because after all the information about my identity is my own private property. 

 

If Elance/Upwork has an authorization document from Government Of India/Reserve Bank Of India that is in line with the Master Directions stated in the link above, do let me know and I will fulfill the compliance requirement at the earliest. In the absence of same, I would need some authorization document from Upwork that is directly related to Government agencies.

 

Hope that explains. I believe the KYC compliance is similar for all countries irrespective of what USA Government if seeking. If USA Government is specifically asking for KYC of Indian citizens provide me a copy of that authorization/request document, I will verify it with Indian Government authorities here and get back to you.

 

Active Member
Denise Chitatma C Member Since: Aug 28, 2019
10 of 13

Your answer is confusing.  Does UpWork classify all members in a foreign country as not paying USA income tax?  If so, a huge population of potential members is being ingnored and excluded.  I am on a long stay in a European country.  I am not a permanent resident.  I do not work.  My money is in the USA and I file USA income tax every year.  I use American dollars that have been through a money exchange.  I do not earn euros or pay VAT taxes as I do not own a business or earn money outside the USA.  I am a natural USA citizen and the USA is my permanent home.

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