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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.
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Contract Worker's Bill of Rights
I
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,
1. Job matching.
2. Contract negotiation.
3. Invoicing, collections and payroll.
4. Accounts receivable factoring.
5. Employer of record.
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.
II
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.
III
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
expressed 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 expressed, 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 expressed permission to release the resume to that particular end
user or other broker.
IV
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,
1. Marketing candidates to references.
2. Soliciting job orders from references.
3. Soliciting from references the names of co-workers, colleagues, and
contractors.
4. Soliciting business leads from references.
5. Attempting to recruit references.
6. Transferring or copying reference information to any location
outside the contractor's own file.
7. Making reference information available to anyone not specifically
engaged in placing the contractor with an end user.
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.
V
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.
VI
Consequences
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.
VII
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.
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