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If you are controlling how work is done then you have an employee. If subcontracting is unacceptable and you are still hiring contractors then you are just tryi
by lovich 9y ago
If you are controlling how work is done then you have an employee. If subcontracting is unacceptable and you are still hiring contractors then you are just trying to run around employment law, at least in the US
- abiox 9y agodo you have specific citations or is this some ideological stance? to me it makes zero sense to hire a vetted contractor who can then just toss say, classified data, over to some unknown random. it's a completely untenable proposition.
- lovich 9y agoIf you are requireing who can do the work and how it's done you've constrained the person into an employee-employer relationship regardless of what you decide to call. Contracts are like an interface, you are setting up an agreement on what is being provided and don't care about the implementation. When you constrain the contract so much that only a single person can fulfill the contract you are just abusing the concept of contracting. In the example above with NDAs and security clearance that can be a perfectly valid requirement, but you can't reasonably be upset if the contractor subcontracts out to someone else with clearance who has signed the same NDA
- abiox 9y agoi don't agree with your definition of contracting, but either way i'm particularly interested if you can point to some legal code that forbids a contract from containing a "no subcontracting" clause. that would be quite interesting.
- lovich 9y agoI looked and couldn't find any limitations on subcontracting that werent specific to federal contracts so it likely that my personal view doesn't match up to the law
- tigershark 9y agoAbsolutely no. The client needs to agree on the other person that is doing the work instead of you. They will need to check that they have the qualifications and they will need to know who is handling sensitive data. It’s even valid for the IR35 rule. The important thing is that someone else can do the job upon agreement, but you will never find in any contract for a serious company/institution that you can pass on your job covertly.
- T2_t2 9y agoIn Australia, that is the law. You pay employees and contractors differently, and they have different benefits.
- wool_gather 9y agoI appreciate and largely agree with what you've said, but I think you're neglecting a context where there's an NDA or similar involved, which is what I assumed was meant by "even vaguely sensitive". As far as I know, there's no legitimacy to someone who's signed an NDA somehow sublicensing that NDA without the explicit approval of the issuer of the original agreement.
- deleted 9y ago[deleted]
- lovich 9y agoThat's entirely true about NDAs, but then are you really hiring a contractor or just misclassifying full time employees so you're off the hook with employment law?
- zephyrfalcon 9y agoJust my $0.02... I have worked some jobs as an employee, some as a contractor, and in my experience there is really no difference between the two, other than how taxes (and social security, etc) are handled. My contracting jobs did not give me any more flexibility (and probably all had this "don't use a subcontractor" clause). How much leeway I had in choosing "the time, place, and manner of my work" depended entirely on the company, not on my status as an employee vs a contractor.
- lovich 9y agoThat is reality of how contracting jobs are in the current environment, but it is circumventing the law. I also have worked contracting jobs where I had to be there 9-5 and implement the exact architecture outlines by one employee of the client, while the boss I answered to on a daily basis was another employee of the client and not my nominal boss at the consultancy. All of that is solely to get around to requirements with hiring employees like providing benefits, or needing to pay for increased payroll taxes when the company decides to lay a bunch of people off. It's not right just because the rule of law has degraded so much that the government no longer enforces their own rules