What’s on the iPod: Strange Condition by Pete Yorn
It must be a week of best-laid schemes flying out the window. Yesterday was no exception. I had what I thought was a smallish project in the morning that turned out to be much more complicated than it presented itself to be. There went three hours.
But I did manage some work on my article, and I’ve decided today is the day I get blog posts done and the article as close to finished as I can get it. I’m also awaiting word on a new client project, which will need to be done quickly.
I had an email conversation with a writer friend who presented a scenario that I’ve now seen twice. Because it seems to be some emerging trend brought about by nervous companies, I told her I’d share it with you and get your opinions. Here’s her story, paraphrased:
I write for XXX. I have a contract through them, which is pretty good and I’m happy with it. However, they are going to do some branching out in terms of content and a number of us expressed interest in writing on other topics, so they decided the create an addendum with a separate work for hire/freelance contract. I don’t have an issue with the contract itself but I do have an issue with the application and Schedule A they’ve created.
I didn’t have to fill out an application to be a contractor with them in the past, so I don’t understand why one is needed now. But that’s not the real issue. They want the names and contact numbers of all of my present clients in order to provide proof that I am in fact an independent contractor.
I’ve never given names and contact info for my clients because most of the time I sign a non-disclosure, especially when it’s ghostwriting. In the past I’ve always supplied links where my work could be viewed.
The application concerns me only because this is not information I’ve ever supplied to a client before – even a relatively large digital client. The agreement I’d be signing already states that I agree and acknowledge that I am an IC so I don’t understand why additional documentation is required.
Then there’s the affidavit (or Schedule A). I’ve never signed one of these before and it makes me uncomfortable that even after signing they could require me to obtain worker’s compensation insurance.
I would be okay with signing a release of liability but to buy worker’s comp insurance would be silly (I think) and could actually hurt me financially.
She shared Schedule A with me. Here’s what it says:
Schedule A
If you do not have a worker’s compensation policy, please prepare a NOTARIZED AFFIDAVIT meeting the following minimum requirements:
1. The affidavit must be printed on your pre-printed invoice or letterhead.
2. It must state your business name and address.
3. It must state the type of work to be performed and the location.
4. It must state that you will perform the work without the assistance of other individuals.
5. It must state that you are in business for yourself and have other clients.
6. If services are rendered by a partnership, you must submit a copy of the partnership registration with the affidavit (no exceptions).
7. The affidavit must state that the job will be performed on a lump sum basis and that services will be solely performed by you.
An affidavit format is attached for your reference.
Once submitted, your affidavit will be evaluated. You understand XXXX may require you to obtain a worker’s compensation policy and that your submission of this affidavit is not the sole factor XXXX utilizes to determine whether you are an independent contractor.
Overkill? I think so. Personally, I’d be fine with signing an affidavit. Notarizing it seems a bit much, but I’d be fine with that. However, I’m not fine with the “XXXX may require you to obtain a worker’s compensation policy…” language. They cannot force you to purchase a policy. They can make it abundantly clear that you’re not covered under their worker’s comp policy, but to require you to buy insurance? That’s overstepping their authority.
My best guess is someone is using standard contractor language meant for construction or trades contractors, who usually do need to purchase worker’s comp coverage on their own. I say push back, say no, have that part removed, or turn down the “offer.”
What seems to muddy the waters for this company is that they’re requiring an application. As this writer pointed out in conversation with me, it felt to her like an employment application one would fill out for a regular staff position. So here’s a company treating contractors like employees on one hand, and requiring them to behave like construction workers on the other hand. I would love to hear the wisdom of those two moves from the legal genius who created these hurdles.
So writers, have you come across anything similar? What would you advise this writer to do? What would you do in this case?
12 responses to “Addendums and Oddities”
I haven't come across it. They would have to remove the workers comp language before I would consider signing it.
Strange.
When a company hits you with this b.s., you push back and you push back HARD. EITHER you are a freelancer, jobbing in OR you are an employee with full benefits. None of this "you're responsible for everything on our end, including paying for it, but no benefits." Tell them it's unacceptable and be prepared to walk away.
It is NOT their business to have information on all your other clients. They can look at the resume, but a list like that is NOT proof of IC — it's away to try to poach clients and/or suss out competition, while being underhanded about it.
Walk away. And make it very, very clear why.
This whole "you have to buy insurance" is BS. The entire insurance industry is a scam anyway, and now companies want freelancers to buy even more? No.
I once had a contract where I was asked to reveal all non-compete agreements I had with other clients. And there was a section where I had to identify work I claimed ownership to. Very weird. I just told them I wasn't comfortable and wouldn't be signing.
Likewise, Cathy. I can't see how this information is relevant OR their business.
It is BS, Devon. These companies don't have the right to require such things from freelancers. We're business entities, contractors. We're not pseudo-employees dying to jump through hoops. I'm okay with signing a waiver so they feel their asses are covered, but I would refuse their application process and their insurance requirement. And they'll be hard pressed to find ANY writer who can afford WC insurance. It's not necessary for our line of work.
Krista, that's crazy! Why did they need to know all that? I wouldn't have signed it, either.
I get them wanting to verify that you have other clients to ensure that the IRS views you as an independent contractor (and couldn't you send 1099s or pay stubs instead of giving them a phone # to call?). I sort of get why in some situations they might be worried about worker's comp or other types of insurance.
But I've come across outrageous requirements like this in the past and it's really frustrating. If it in fact this in one of many clients, how the heck are you supposed to find time to jump through all these ridiculous hoops?
I had a contract that required me to purchase $2M in liability insurance and I pushed back, saying it wasn't relevant to the type of work I do. The editor told me none of the other writers had a problem with it. I told her, "based on how much you're paying, I wouldn't be able to cover a policy of that scope and still make a profit on this project, so I'd be curious how your other writers do it." She told me she didn't know, to which I said those writers are probably signing the contract without reading it. Then someone in legal emailed me to say, "we're willing to compromise with a $1M policy." Again, not relevant to the work I do, so I continued to push back and eventually they dropped that clause.
Wow, I've had companies request me to sign some pretty off the wall documents, but I've never seen anything like this. Interesting…
Round peg, square hole. I echo the sentiments that you need to push back (politely) and explain why. Unless your state law requires it (and according to this article in Entrepreneur, some do), there's no reason for a solo proprietor with no employees, working offsite, to have worker's comp.
That said, for peace of family mind, I personally spend about $350 a year for a basic disability policy. I imagine that would be a way of meeting the requirement.
With other client names and numbers, I'd simply state that the best you can do, due to confidentiality agreements, is supply the links as you've done in the past.
A few years back, one of my partner-designers had us close to an advertising deal with a Fortune 500 company. The liability insurance they wanted us to have would have cost a good chunk of the "trial" project revenues, with no guarantee whatsoever that we were going to get a second job. Um, no thanks.
I wouldn't sign that info, either.
I'd push back, and if it didn't work, I'd walk.
like susan, a few years ago i had a public facility ask me to sign a form stating i had a $2 million in liability insurance or a waiver accepting liability for any injuries or property damage – down to 'normal wear and tear' – for a two-hour writing workshop. i refused, pointing out how i had given a presentation in the past without signing any such form, and knew several other individual who regularly give presentations and workshops there who have never been asked to sign such a form. they still insisted, so i walked away.
if devon were a lawyer, i'd want to have her on retainer.
proving you have other clients has absolutely nothing to do with your independent contractor status – what if they are your first and only client? And no one is entitled to a list of your clients except, maybe, the IRS.
Once you're established as an independent contractor the workers comp stuff is utter nonsense.
And as an independent contractor if you want to hire me or your favorite job to help with the assignment that is also none of their business.
Preprinted invoices and letterheads are also none of their business… your business name and address and your ein or ss number if you're in the US are, particularly if they plan on paying you more than $600 a year.
And an affidavit? No clue about that really, but they've already struck out on so many things I wouldn't do that either… unless it was a simple affidavit that I was an independent contractor… and I probably wouldn't go that far.
Bet they've hired a new law firm.
I'm with Devon, push back, hard.
Not that I have an opinion or anything 😉
LOL! Anne, I love your opinion. 🙂
I think it's as you say – new law firm. And either the law firm or the company itself has no idea how to work with contractors. Or maybe they see the word "contractor" and run to the Internet for the standard contract language covering construction workers. If that's the case, fire that law firm.
Paula, I remember that! It was strange given the public facility itself. VERY strange!
Kim, I've never been asked to sign anything like this, either. And I wouldn't.
Susan, good for you! I wouldn't have agreed to that, either. My taking on risk – or covering it with insurance – is my business entirely. Not theirs. I get that there are people who would sue over a hangnail that developed in the company's parking lot, but the law already dictates enough rules to separate staff from contractors.
These are people who shouldn't be doing business with contractors.
Sorry, Jake. Just rescued your comment from the Spam folder. If it's any consolation, I found my own there, too. 🙂
I'm all for freelancers having coverage if they need it and can afford it, so thanks for the link. But my back goes up the instant a company requires it of freelancers. I don't blame you for not falling in line with what the F500 client wanted. The status of the job wouldn't pay the bills. 🙂