Self-Reliance And Security For
The Contract Worker's Bill of Rights identifies generally accepted standards of professional conduct as they apply to contract brokers, contract employment agencies and others who assist contract workers in their relationship with the end user. The Contract Worker's Bill of Rights provides an objective standard by which to separate the good from the bad, the professional from the unprofessional, the ethical from the unethical, and the legal from the illegal.
You should submit the Contract Worker's Bill of Rights with your resume. It is a statement of what kind of business relationship you expect from the broker.
If the broker objects to the Contract Worker's Bill of Rights, ask the broker just what specifically does he or she object to? You will know within seconds if this broker can be trusted with your career and your livelihood. No honest broker could possibly object to any portion of the Contract Worker's Bill of Rights.
Agreeing to the Contract Worker's Bill of Rights becomes a condition of doing business with you, the contract worker.
The Contract Worker's Bill of Rights defines what constitutes professional, ethical and legal conduct by brokers. Conversely, it also defines what constitutes unprofessional, unethical and illegal conduct by brokers. In this regard the Contract Worker's Bill of Rights holds the potential to be the central measure by which the contract broker industry will be judged and ultimately reformed, if not by law, then by the competitive marketplace.
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Contract Worker's Bill of Rights
By receipt of this document the recipient (e.g., contract broker) expressly agrees to the terms and guidelines of the Contract Worker's Bill of Rights.
In the event the recipient is unable to comply with these terms, the recipient further agrees to return or destroy all information in the recipient's possession relating to the sender.
RELATIONSHIP OF THE PARTIES
The Contract Worker's Bill of Rights addresses specifically the relationship between the contract worker (contractor) and contract broker (broker). Contractors are individuals who perform services defined by a contract or other separate agreement for an end user who is not the contractor's employer. Contractors may be self-employed sole proprietors, employees of "their own" corporation, partnership or limited liability company, or employees of a third-party employer of record. Brokers are individuals or firms that assist contractors in their relationship with the end user.
It is a basic right of the contractor that the broker shall have no interest or strategic alliance that conflicts with the best interests of the contractor. Whenever the potential for a conflict of interest exists, it is incumbent upon the broker to operate always in the best interest of the contractor.
The contractor performs direct services for the end user, whereas the contractor performs no direct services for the broker.
The end user pays for the contractor's labor, either directly or through the broker.
It is the end user that evaluates the performance of the contractor, and to which the contractor is ultimately accountable.
The primary working relationship is always between the contractor and the end user. The relationship between the contractor and the broker is secondary to the relationship between the contractor and the end user.
The exact nature of the relationship between the contractor and the broker depends on the professional services provided by the broker. However, the contractor-broker relationship shall never diminish the primary relationship between the contractor and the end user. The broker is the contractor's agent, and the contractor is the broker's client.
Contractors engage brokers to provide certain professional services on a fee-for-service basis. These services include, but are not limited to,
These services may be offered individually or in combination.
For example, a self-employed independent contractor may engage a marketing broker to locate a direct contract assignment with an end user. As an option the broker may also represent the contractor during contract negotiations.
In addition to job matching and contract negotiation services, the broker may provide separate invoicing, collections and payroll. When the broker receives payment from the end user, the broker withholds its fee and remits the remainder to the contractor. Another service often provided by brokers is accounts receivable factoring, also called cash flow management, whereby the broker advances payment to the contractor before the end user actually remits payment.
Alternatively, an independent contractor may locate assignments without the assistance of a job matching service, yet still engage the broker to provide invoicing, collections and payroll, and possibly also accounts receivable factoring. A common term for this type of relationship is pass-through. In a pass-through situation the contractor usually contacts the broker only after the contractor has already negotiated the terms of a contract with the end user.
Brokers may also provide pass-through service to contractors who require W-2 status, either because the contractor wishes to avoid the time, effort and expense of self-employment, or because W-2 status is required by the end user. Contractors who have W-2 status are properly referred to as contract employees.
While it is acknowledged that the W-2 contract employee is a regular employee of the broker, this relationship remains secondary to the primary relationship between the contract employee and the end user. The end user still pays for the direct services of the contract employee. The contract employee still performs direct services for the end user, and performs no direct services for the broker. And, the end user still evaluates the performance of the contract employee, who remains ultimately accountable to the end user.
W-2 employer of record service is, in fact, just another professional service provided by the broker. Brokers that provide W-2 status to contractors are properly referred to as contract employment agencies. The contractor assumes the role of employee solely for the convenience of having a third party withhold payroll and income taxes, and for the purpose of satisfying certain issues of compliance that may be of concern to the end user.
It is not uncommon that contractors engage brokers to provide job matching as well as employer of record service. The fact that the broker provides multiple services for the contractor in no way detracts from the primary relationship between the contractor and the end user, for whom the contractor performs direct services, by whom the contractor's work is evaluated, and to whom the contractor is ultimately accountable.
FULL DISCLOSURE OF SERVICES AND CHARGES
It is a basic right of the contractor to be fully informed of all charges imposed by the broker in return for services the broker performs as agent of the contractor.
Disclosure of rates, fees and charges is a hallmark characteristic of the professional service provider. Hiding or refusing to disclose service charges is unethical and may constitute fraud.
The end user pays for the direct services of the contractor. In those cases where the broker receives payment on behalf of the contractor, it is incumbent on the broker to disclose to the contractor all revenues remitted by the end user as payment for the contractor's direct services. No broker shall arrange a separate agreement with the end user for the purpose of concealing the full amount paid by the end user for the contractor's direct services. Doing so is unethical and may constitute fraud against the contractor.
Brokers shall clearly and fully disclose what services they provide, and clearly and fully disclose the separate and incremental charges for those services. Brokers shall employ a uniform fee schedule that applies equally to all contractors who engage their services. Brokers shall charge only for services they actually perform.
The broker may charge for professional services on a contingency or non-contingency basis. The broker may charge a fixed fee or bill for actual time and materials. Most frequently, the broker charges a percentage of gross revenues earned by the contractor over a specified time which may extend for the entire duration of the assignment. Exactly how the broker charges for its services to the contractor is immaterial to the requirement that all charges shall be detailed with respect to services provided and the specific charges for those services.
The contractor is under no obligation to honor a service agreement or an employer of record agreement that does not clearly identify specific services to be performed by the broker and their associated charges. Any attempt by the broker to withhold full disclosure of service charges is unethical and may hurt the contractor's ability to obtain gainful work.
INTEGRITY OF THE RESUME
It is a basic right of the contractor that the contractor's resume shall never be modified or distributed without the contractor's knowledge, review, and express permission.
The contractor's resume is protected by copyright, and remains the property of the individual contractor. Copyright protection is not diminished because the resume is posted to an electronic database, personal web page or other public venue. The contractor's resume is specifically not in the public domain.
The integrity of a contractor's resume is inviolate. Modifying the appearance and content of a resume for the purpose of misrepresenting an individual's skills and experience is fraud. Such misrepresentation may create unrealistic expectations of the contractor's performance, and thus damage the contractor's reputation and hurt the contractor's ability to obtain gainful work.
A resume may never be distributed to potential end users or to other brokers, or posted to an electronic venue, or sold to a third party without the contractor's express, prior approval. Unauthorized distribution of the contractor's resume may result in multiple submissions to the same end user, resulting in the contractor being removed from consideration for a qualified assignment, and thus hurt the contractor's ability to obtain gainful work.
The contractor has no contractual obligation to a broker that distributes the contractor's resume to an end user or other broker without first receiving the contractor's express permission to release the resume to that particular end user or other broker.
REFERENCE INFORMATION IS PROPRIETARY AND CONFIDENTIAL
It is a basic right of the contractor that reference information shall be used solely for the purpose of conducting a narrowly defined background check of the contractor. Any other use constitutes theft and misuse of proprietary, confidential, information belonging to the contractor.
Examples of misuse of reference information include, but are not limited to,
Misuse of proprietary and confidential reference information as described herein may negatively affect the contractor's relationship with valued references, and thus hurt the contractor's ability to obtain gainful work.
FREEDOM TO WORK
It is a basic right of the contractor to work whenever and wherever the opportunity exists, free from unreasonable and overly restrictive non-compete periods and end user buy-out provisions.
In the case of job matching service, the contractor's obligation to the broker shall not extend beyond six months from the initial introduction to a prospective end user. When the introduction leads to a contract assignment, the contractor's obligation to the broker shall not extend beyond six months from the end of the assignment. The six-month maximum applies equally to non-compete periods and to end user buy-out provisions.
Non-compete clauses and end user buy-out provisions shall apply only when the broker introduces the contractor to the end user, and only for the specific department and physical location where the assignment is carried out.
No broker shall restrict a contractor from engaging the services of another broker.
No broker shall restrict a contractor from accepting work with a specific end user except as provided by a valid non-compete clause or end user buy-out provision as described herein.
As the contractor's agent, the broker shall exercise no ownership privilege, or exclusive right to represent the contractor.
Individuals and firms that attempt to interfere with the contractor's freedom to work as described herein may be practicing indentured servitude and other prohibited activities that can hurt the contractor's ability to obtain gainful work.
Individuals and firms that violate the terms and guidelines of this Contract Worker's Bill of Rights may be practicing fraud, indentured servitude, theft and misuse of proprietary information, copyright violation, and other activities specifically prohibited by law. Individuals and firms that carry out illegal activities, or cause material harm to the contractor, or otherwise hurt the contractor's ability to obtain gainful work may be subject to legal prosecution and civil remedies to the full extent permitted by the law, including substantial punitive damages, court costs, and attorney's fees.
PRIMACY OF THE CONTRACT WORKER'S BILL OF RIGHTS
No direct contract or third-party contract with the end user, and no employment agreement between the contractor and a broker, shall supercede or override the terms and guidelines of this Contract Worker's Bill of Rights.
Copyright © 1998 James R. Ziegler. All Rights Reserved.
No attempt is made by this document to dispense legal advice. If expert assistance is required, the services of a competent professional should be sought.
Guidelines for Publishing Excerpts and Linking to the Contract Worker's Bill of Rights.
Excerpts: The Contract Worker's Bill of Rights is a Work in Progress, and is subject to change. You may excerpt and publish selected portions of the Contract Worker's Bill of Rights with proper notice of copyright and reference to The Contract Employee's Handbook at www.cehandbook.com.
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