hcp56
Member

Location Work - Violation of Terms of Service or Not?

I have been going back and forth with the help center for the past few days.  There was a job posted that the client interviewed me for and wanted to hire me but couldn't find my proposal.  I submitted an inquirey to the help desk and they responded stating that the client had inadvertently archived my proposal and gave instructions to correct it.  

 

The title of the job description specifically stated that they were looking for a local person as some in-person tasks were required.  I am fine with this and the client is allowing manual time entry for the times when this is necessary.  I am aware that these hours will fall outside of the hourly protection guarantee.  I am willing to accept this risk.  The help desk proceded to inform me that on-site location work was a violation of terms of service and provided a link to the terms of service.  I reviewed the terms of service and did not see anything that specified that on-site/location work was prohibited.  I have seen a number of posting on this site from verified clients with a history that are posting jobs with combo on-site/remote duties.  This is not circumvention as there is no intent to avoid paying through the site (hence the original help desk request).

 

I replied to the help desk and pointed out that the terms of service actually states that Upwork cannot tell the freelancer where to work according to the terms of service:   [Section 10, paragraph 1, line 7] was "Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer Fees will be set at an hourly or fixed rate for a Service Contract. ".  I asked for the specific location and site of the terms of service that states that this is a violation.

 

Under terms of use it states:  

"1.2 USING THE SITE OTHER THAN FOR THE INTENDED PURPOSES

Upwork makes the Site and Services available for Clients and Freelancers to find one another, enter into service relationships, make and receive payments through escrow, and receive and perform Freelancer Services. Users are expected to use the Site and Services for their intended purposes and Users may not use the Site and Services in contravention of their intended purposes. The following are examples of prohibited use of the Site:"

 

The examples listed do not include on-site/location work.

 

I asked for additional clarification and specifics as to where it states in the terms of service that work can only be done remotely.  The help desk responded by reaffirming that it was a violation of terms of service and this time provided me a link to the client as well as the freelance terms of service.  I still cannot find anything that specifically addresses the issue.  I responded a second time and asked again for the specific citation of where it is a violation.  They have yet to respond to this.

 

Upwork consistently references 'freelance' and in their about us splach talks about connecting freelancers and clients though an online service but doesn't state that the freelance work is exclusively online.  

 

Does anybody have any idea where this is referenced in the terms of service?  Please do not respond by stating that Upwork only allows remote work without a direct citation of terms of service (section, paragraph and line).  Also do not reference the non-circumvention clause (section 7), because that is about avoiding paying through the site, which is not the issue.

 

 

30 REPLIES 30
corati
Member

Well, I've seen several jobs requiring on-site work and I didn't know it was against the TOS

Exactly.  New one posted in the last hour.  Also, I don't know if it is truly against the TOS or if that is an erroneous assumption.  If it is against TOS, there are a hugh number of easily identifiable listings that are against TOS.  I sent the help desk about 20 that I reviewed and found in my original reply.  They are all still active with the exception of the completed jobs.

Customer support doesn't always get it right. I hope a mod can come along and clarify. But if your client has hired you officially and it is all above board  and you are paid via Upwork (whether your hours are tracked or not), I don't see why there should be a problem.

 

The only thing they could jib at is the untracked hours. 

 

 

I am not terribly concerned on the untracked hours.  I have done freelance work for years (new to Upwork) and have never had an issue with reported time with my clients.  Also I researched her and her reputation before accepting.

This doesn't have anything to do with ebay does it?

Nope.  Owns a consulting firm.  All general admin, bookkepping and project management.  No mention was made by the help desk regarding the job description.


@Hannah C wrote:

I am not terribly concerned on the untracked hours.  I have done freelance work for years (new to Upwork) and have never had an issue with reported time with my clients.  Also I researched her and her reputation before accepting.


 I really meant from Upwork's side, in that you could declare $10 worth of work and pocket (a circumvented) $20 - I'm not suggesting you would, but they might see it from this angle. 😉

Yes, that would definitely fall under the non-circumvention clause and is expressly prohibited.  However, the help desk stated "client offered you to come to her office physically and this is a violation on Upwork." in the first email and then "Please be noted that the job post your reporting which requires applicant to work on site is a violation of our policies." in the second. These statements specifically address the location of work and not the payment of work.

 

 

sam-sly
Member

I am a little confused why help desk is involved? If the client was about to send a message to your through Upwork, it seems that he or she had your proposal. If she or he archived it, then he or she should be able to find it in their archived listings. Something sounds a little odd.

 

I do not know about the T&C issue though it does not make any sense. Why would Upwork want to exclude paying contracts since that is how they earn their revenue? I could see they might not want to encourage on-location work for the freelancer's safety and their own liability. Sometimes shady people pose as clients and might use an add to lure freelancers somewhere. Think of some of the darker things that happened when people respond to the rare shady Craigslist add. However, if you are careful and can confirm it is a legitimate business in your area, I am not sure why Upwork would care, assuming you are paid through Upwork. 

She didn't realized she archived it. She wanted to hire me and couldn't see my proposal anymore even though we were chatting though Upwork.  I wanted to make sure I was officially hired before I did anything.  As soon as I gave her the info to reverse the archive, she hired me.

claudiacezy
Member


@Hannah C wrote:

"1.2 USING THE SITE OTHER THAN FOR THE INTENDED PURPOSES

 


 "Advertising products or services that are outside or beyond the scope of the Upwork marketplace;"

 

 

User Agreement

 

4. PURPOSE OF THE SITE AND SITE SERVICES

The Site is a marketplace where Clients and Freelancers can identify each other and advertise, buy, and sell Freelancer Services online.

Also the scope is admin work, which is fully identified and catagorized on Upwork.

 

 

Yes, buy and sell.  Not perform.  The key aspect is the location of the work performed.  The work has been and will be bought and sold online.  The only thing I could find addressing location in the TOS was in section 10 which stated that Upwork does not control the location of the work.  


@Hannah C wrote:

 

Yes, buy and sell.  Not perform.  The key aspect is the location of the work performed.  The work has been and will be bought and sold online.


 User agreement

 

23. DEFINITIONS

 

“Freelancer Services” means all services performed for or delivered to Clients by Freelancers.

Yes, all services provided.  No location specified.

 


@Hannah C wrote:

Yes, all services provided.  No location specified.

 


Because Upwork is a virtual workplace ... people "connect and collaborate remotely."

 

I suppose on-site location jobs are permitted only under the Payroll Employee Agreement. There's a mention about the work environment.

 

 

??? what do you mean, Claudia?

buy and sell freelancers services ONLINE

is not the same as

buy and sell ONLINE freelancers services

 

As to this statement by Upwork staff that "client offered you to come to her office physically and this is a violation on Upwork", the rep's English skill could use improvement and maybe her understanding of the User Agreement is similarly deficient, because if the intent is to prevent money being passed under the table, so to speak, then prohibiting working at a client's location is rather ineffective, since nothing prevents the client & freelancer from meeting in a public location, like a cafe for instance, and exchanging payment that way.

__________________________________________________
"No good deed goes unpunished." -- Clare Boothe Luce

And you don't have to meet to do that.


@Claudia Z wrote:

@Hannah C wrote:

"1.2 USING THE SITE OTHER THAN FOR THE INTENDED PURPOSES

 


 "Advertising products or services that are outside or beyond the scope of the Upwork marketplace;"

 

 

User Agreement

 

4. PURPOSE OF THE SITE AND SITE SERVICES

The Site is a marketplace where Clients and Freelancers can identify each other and advertise, buy, and sell Freelancer Services online.


I think you're misinterpreting it slightly, Claudia. It's on about services that are outside or beyond the 'scope' of the markeplace, not that are 'outside' the marketplace itself. Even if it were, it's purely relating to 'advertising' products and services here, not completion of the actual work. 

"Welcome, humans. I'm ready for you!"
- Box, Logan's Run (1976)
firescue17
Member

See this thread including the second response from Vladimir.

 

I interpret, "... Certain on-location activities are not allowed to be advertised on Upwork ..." as referring to the **Edited for Community Guidelines**

 

Assuming the contract is legit and the exchange of funds is compliant, you're fine. The help desk doesn't know what they're talking about.


@Steven E. L wrote:

See this thread including the second response from Vladimir.

 

I interpret, "... Certain on-location activities are not allowed to be advertised on Upwork ..." as referring to the **Edited for Community Guidelines**

 

Assuming the contract is legit and the exchange of funds is compliant, you're fine. The help desk doesn't know what they're talking about.


 I just choked on my coffee reading that.  Not because I have any aversion to such "ladies" or the "activities" they are involved with, but because I live in Nevada... two blocks from a business of interesting reputation.  Cat LOL

 

On topic: I agree that if the contract is set up and paid through UpWork, then simple tasks on-site such as printing out files to be placed in filing cabinets on-site certainly should be just fine.  As long as payment is made through UpWork then I cannot see an issue, unless perhaps it could fall under employer/employee instead of freelance.  In that case I'm pretty sure it would be subject to UpWork's payroll services instead.  Just a thought, but perhaps that is their issue with it?

~I am only here when I can tolerate having my eyes blasted, my privacy treated like a joke, and my temper pushed to it's limit. For all other times, please request alternate contact methods~

It seems as if it is a rote response not backed up by the TOS.  

 

I'm not sure that it is a payroll thing.  Contract labor typically has to do with resources and compensation more than location.

In the topic quoted by Steven, Vladimir wrote "Certain on-location activities are not allowed to be advertised on Upwork. That's why I made it clear our team needs to review each case separately and confirm it's in line with our ToS." So at the very least, it's inaccurate to say that any job requiring work on site violates ToS. And if there *are* jobs that are permitted off site but not on site, an example from a moderator, even if hypothetical, would be instructive.

__________________________________________________
"No good deed goes unpunished." -- Clare Boothe Luce

So now I get the response below from the help desk.  They quoted 1.2 and highlighted the sentence below.  

 

 

"1.2 USING THE SITE OTHER THAN FOR THE INTENDED PURPOSES

 

"...Advertising products or services that are outside or beyond the scope of the Upwork marketplace....."

 

I don't think it means what the help desk thinks it means.  The client would be soliciting services, so therefore not applicable in her case.  I haven't advertised any specific product or service. The work is certainly beyond the scope.  

 

Do they have anyone that knows contractual language answering these questions or are they just guessing?  They also do not have a specific definition listed for scope (defining the limitations of scope).

One would think asking the Help Desk is a good idea. Unfortunately, all they do is further compound the problem by copy and pasting bits and pieces of legal text written in language which is foreign to them. You're not going to make any progress continuing to twist that rubix cube. They are not legal scholars. They are **Edited for Community Guidelines**

 

The situation at hand is not particularly confusing. There are only two factors to consider:

 

  1. Is the work legal? If the work is illegal (drug running, prostitution, check fraud) - Full Stop. Do not pass Go. Do not collect $200. If the work is a legitimate, legal business task goto Step 2.
  2. Is the exchange of funds for above said work transiting through the Upwork platform? If the funds are not being exchanged on Upwork (circumvention) - Full Stop. Do not pass Go. Do not collect $200. If the funds are being exchanged on Upwork go get to work and fill up your piggy bank.

That's all there is to it. All the rest of this musing about contract work vs. payroll services, etc., etc., is simply a hypothetical smokescreen.

vladag
Community Manager
Community Manager

Hi Hanna,

 

I see you received detailed responses on your ticket regarding the job post you enquired about, which was reviewed and removed for violating Upwork ToS. I also see our team followed up and outlined the exact article prohibiting the type of behaviour that was discussed between you and your client. Note that users are not allowed to post private communication in the Community so please refrain from sharing sections of our agents' responses and feel free to follow up on your ticket if you have any questions.

Untitled

Vladimir, 

 

They were excellent in responding to my site issue question, no doubt about that. My repeated follow up has been in regards to the question of this thread.  I do not believe, even with this last response that they have adequately answered that.  I have read through the TOS and done word searches to see if I have glossed over anything, but have yet to find anything other than Section 10 which specifically states that Upwork does not control the location of the work.  

 

Scenario 

Client engages freelancer to enter paper ledger into electronic bookkepping system.  Client does not have a scanner and is not very techologically adept.  Client has a bag of receipts and a ledger.  Position is posted requesting a local person so that documentation may be handed over.  Option #1 - meet client receive documentation.  Option #2 give out personal address to have documents mail.  I personally would prefer Option #1.

 

Additionally, I have seen numerous postings by clients stating that they are looking for someong to work on-location. These include but are not limited to:  phtography work, IT support,, office work, and in-person translation at meetings.  Some of these are open positions and others are successfully completed, paid and reviewed positions.  There was no subterfuge in the postings, they clearly stated outright what the need was for the position.  Most do not appear to be scams and are often posted by long term clients of the site.  

 

If this is such a prohibition, why are these positions posted?  Why have these positions been done/completed in the past?  Why isn't this clearly stated in the terms of service?  Because it is not.

 

Hannah and others,

Jobs can include an on-site component, provided they meet our other policies and payment is completed on the site. It is possible jobs removed previously included other violations besides this on-site component that warranted their removal. In any case, we're going to review these policies with our team. We're also going to work with our Legal team to take another look at the Terms of Service in case there's any opportunity for improvement there as well. 

 

If you are presented with specific, real scenarios that include on-site work, you can double check with our Support agents and we'll advise on the proper course of action. We'll ensure that guidance and enforcement is consistent, and clear.

 

Thanks


. . . Garnor M wrote:We're also going to work with our Legal team to take another look at the Terms of Service in case there's any opportunity for improvement there as well.  . . .

 

Thanks


 This is great news Garnor. There is some very ambiguous writing in the ToS, which definitely should be clarified.

 

(Am I mistaken in thinking that there were once separate guidelines for clients and freelancers? If I remember rightly, the old oDesk ToS, were much clearer if somewhat longer.)

I'm gettin some feels that this project had some scam elements, OP.