Is this against Upwork rules? What's the problem, assuming the work was done according to spec?
1. Legal/compliance/tax problems
2. If Upwork were to allow this, it effectively allows bad actors to reset their reputation whenever they want
3. If you're willing to lie about this, do I really want you working for me?
4. Just because you approve of them and think they're safe doesn't mean I do, and you're sending my confidential company secrets and source code to them
None of these are problems if you're upfront about it, but lying and claiming you're doing the work when you're actually outsourcing it is very bad.
In other words, is it the misrepresentation that's the problem, is it your need to scrutinize the subcontractors, or is it simply that the prime contractor isn't personally toiling sufficiently for you?
Personally, I don't see what the big deal is. A client is paying some agreed amount of money for some agreed results in some agreed time period. What difference does it make if the contractor personally types in the code or if he finds 5 Indian guys to do it?
I put in some hours in the world of defense/government contracting, where in many cases, the prime contractor never does any work at all. His only job is to "be the prime contractor" but he subcontracts everything, and I mean everything out to others as soon as the ink is dried.
There seem to be quite a few comments specifically calling out the misrepresentation as the main problem. I guess we could speculate that the motivation is actually that they want the prime contractor to toil for them, but I dunno. Caring who exactly is toiling seems kind of weird and controlling, we should be generous to the community and not ascribe weird motivation to them if they've got some other perfectly reasonable reason to care.
Yes, the misrepresentation is the key part. For example, if I grant you access to a server that doesn't mean that I want a bunch of randos I never meant having access to the same server as you — if nothing else, you'd want them to have had whatever you consider necessary security training and you'd want your ops people to know that a connection from Romania isn't an immediate sign that you've been hacked.
This is especially true when you're crossing country boundaries and things like IP law or similar concerns vary widely. Most contracting agreements cover things like handling corporate IP carefully and I'd expect at least a request to confirm that this is okay.
Now, there are cases where it might be more forgivable: for example, if I'm hiring you to work on a project which involves an open source component and you turn around and hire one of the developers on that project to add a feature we need, that seems entirely reasonable because it's a) not my IP and b) totally above board that J. Random Maintainer made those commits and shipped v1.2.3 which you're using. Similarly, if you found an artist to contribute assets but didn't give them access to my server or a copy of our code, that seems fine, too. None of that seems anything like the situation described, however.
> I put in some hours in the world of defense/government contracting, where in many cases, the prime contractor never does any work at all. His only job is to "be the prime contractor" but he subcontracts everything, and I mean everything out to others as soon as the ink is dried.
Yes but speaking from experience on the .gov side they do that with the full knowledge of the agency and a contractor will be terminated and banned from future work if they violate security policies such as having unauthorized people access a government system or sharing source code without authorization.
> Personal performance of services: An independent contractor should have the freedom to hire assistants or subcontract work to other workers or firms at his or her expense (this is where profit or loss could enter the picture). If you require the worker to perform the work personally, that's a sign of control and therefore indicative of employee status.
This whole thread got super litigious around my comment that there is a defendable reality where people subcontract what you contracted them to do. It all depends on the contract wording.
Good counter example to me defending be able to subcontract would be performance agreements (e.g. I pay Foo Fighters $1m for a concert they can't send Weird Al in their place).
Someone would be an employee rather than a contractor if they couldn't subcontract AND they had set hours AND they had to use your tools AND you set the work on a day to day basis. Many of those things need to be true, not just one to push someone from contractor to employee.
Or consider the ABC test:
A. The worker is free from the employer's control or direction in performing the work.
B. The work takes place outside the usual course of the business of the company and off the site of the business.
C. Customarily, the worker is engaged in an independent trade, occupation, profession, or business.
In this case, again, depending on the contract signed, A would cover subcontracting unless it was explicitly prohibited by the contract. And maybe it was. But I have signed plenty of contracts with my personal name not my fictitious or LLC name that would not have been violated by having someone else perform the work.
Yes, but the contractor must still respect the other contractual obligations.
For example, they almost certainly signed a contract that they wouldn't share the codebase (NDA) or share access to the company's systems. The contractor would have clearly violated this by giving the code to someone else to work on and giving that person access to the company's Slack under someone else's name.
If he would have subcontracted an isolated task involving no trade secrets, no confidential information, and no access to the company's systems he would have been fine.
But you can't just hire someone in Romania and have them pretend to be you and log in with your credentials and have access to the company's proprietary materials. Being a contractor isn't an automatic license to ignore all of the things you've agreed to.
> Depends on the contract.
And you immediately jump to conclusions:
> they almost certainly signed a contract that they wouldn't share the codebase
We don't know what they signed.
Hired an “American” contractor named Jeff. Had a video meeting with him, everything started off great.
Then when we got him into slack, his English went way down hill.
I tried to get a phone number for him and he resisted and gave excuses why he couldn’t talk right now.
So… because I suspect this is getting to be very common… Get a phone number for your contractor and call them periodically. Insist to speak with them on the phone about something they have done recently.
Even if the work would have been good, I won’t pay a liar like that.