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Comment by bryanlarsen | Hacker News Reader

It's too bad that the original article got flagged to death. Yes, the Register article deserves it, but several of the comments were worth reading. In particular, this one by patio11: https://news.ycombinator.com/item?id=5065400

patio11 mentions that if you try and prohibit contractors from doing this sort of thing, that contractor may be deemed an "employee" rather than a "contractor".

So rather than a prohibition in the contract, make an assertive clause. Ask your lawyer to add a "Key Personnel" clause to the contract. Also ensure that you have the right to remove any specific individual.

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This also somewhat applies in the UK. We have a (stupid) law called IR35 that attempts to determine the difference between an actual contractor, and a (disguised) employee. One of the tests (but not the only one) is "right of substitution" - i.e. can you swap someone else in that can do the role.

As a contractor in the UK who works with these clauses, the key seems to be that the substitution clause has the proviso that the substitute subcontractor (or consultancy provider employee) is acceptable to all parties, so there would have to be a proposal-review process at the very least.

It still seems unclear. There is some allowance for their approval, but they can't unreasonably deny the substitution (which sounds very vague)

"Right of Substitution is fairly clear cut: can you send someone else to do the work. Employees can't do that, so if you can, you are not an employee. However, the client has to have some say in the matter. The usual formula is along the lines of "you may send a substitute subject to the approval of the client, such approval not to be unreasonably withheld"." http://www.freelancesupermarket.com/featured-articles/the-po...

Depends on what "sort of thing" you mean. Subcontracting your work out? Sure, that's acceptable, although I'm not sure it's OK to do it without telling them. Giving people access to the company's VPN without the company's permission? Definitely not OK.

Why the duck would you care how a contractor does what he does?

As long as he delivers what you paid for (and doesn't disclose information you deemed confidential), it should be OK for you.

> "(and doesn't disclose information you deemed confidential)"

Is not some minor detail. You can have a certain level of confidence that your contractor won't release confidential information because they would be subject to civil (maybe criminal) legal action.

When your contractor turns around and subs out that work to someone in another country, that threat of legal action loses quite a bit of its' bite. Sure, you could maybe still prosecute/sue your direct contractor, but you still have no real control over the outsource subcontractor.

In either scenario, the purpose of the legal action isn't for you to recoup your losses -- you probably won't. The threat of legal action is what's supposed to stop these losses from happening in the first place.

Because you're paying a premium for a smart person to come and sit in your office so you can throw things at them when something goes wrong.

If he's subcontracted his work out to someone in another time zone everyone may get in to a spot of bother if something breaks and the person who actually did the work isn't immediately available to fix it.

What happens when the other guy is off sick? Did this guy also have to take time off sick, cos he was unable to do the work himself...?

The other guy was probably subcontracting.

> and doesn't disclose information you deemed confidential

That pretty much kills most subcontracting of this type.

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