Critique and graphic by: Chris Talbot-Heindl
Becoming a subcontractor is a labor of love. You have the website, the advertising, the profiles on the various websites, the keeping of a portfolio of work, the emailing and the waiting. And then, you get a contract and you’re so excited! And you complete the contract and you bill the contractor, and then…nothing. Another contracting con. Tons of shit work down the drain.
My contracting con found me on the Job Center of Wisconsin website and contacted me. I was excited because I didn’t have to do the work, didn’t have to bother vetting the contractor (I assumed that Job Center of Wisconsin did that; turns out I was wrong), and I was excited to do some web design work.
I was extremely upfront with what I did and didn’t know how to do and she seemed like she would be helpful in teaching me the tasks she wanted me to do, but didn’t have time to do herself. But once the job began, it was clear that she either didn’t know the first thing about web design or didn’t communicate very well. I gave her the benefit of the doubt and assumed the latter.
That’s when things started getting hinky. She was upset that I didn’t have a cell phone for business use, but preferred email communication. She began to use passive aggressive language that made it clear that she thought she was doing me a favor continuing to work with me despite this impediment. Every time we came across a task that I reminded her was not in my bag of tricks, she said I needed to find out on my own immediately or risk losing the contract. She also required me to teach her an unbelievable amount (under the guise of explaining the changes I was making, including, “what’s a favicon?”), all of which was, of course, not billable. She began making “appointments” for discussions of what needed to be done or times she would upload the materials I needed, all of which she missed by hours and sometimes days, all of which was, of course, not billable.
Despite all this, and my better judgment, I continued and ended up completing the contract anyway. And about a week before the payment of the contract was due, she requested that I begin another contract with her. I replied that I would be waiting for the completion of the last contract before agreeing to another (exact words being “Please remit payment, and I would be happy to commit to another job,”) and then she flipped out.
She began accusing me of breaking our contract and demanded that I contact her within the next hour and a half to resolve it. Three minutes later, she sent an email, “Your resistance is not part of our agreement and your demand now is not part of our agreement. If you wait, I will consider this a broken contract…”
There was a back and forth, with me being incredibly calm and professional and her getting increasingly hysterical and ridiculous, which culminated in her last response, “I will not be contacting you further for business as I realize I cannot trust you. I will need to have another web developer access the project work you have done prior to your payment to ensure this has been done properly to the client’s benefit as you have represented your services.”
Evidently, the person she got to “ensure” that my work was “done properly” has decided it was as the website is up at the moment the exact way that I coded it.
Five weeks later and I haven’t seen a check or had a response to my late payment reminder.
So, what the fuck happened?
Well, either this woman is a con-woman, or she doesn’t have the slightest idea what the hell a subcontractor is or how to work with one. My hope is the latter as the former is a little unsettling since she does have my 1099 fully filled out.
Apparently, she’s not alone in this. When searching for remedies of what happened, I came across entire websites and law practices dedicated to contractors who con or are confused by a contract. Here’s a little mini tutorial:
A subcontractor is not a person who is beholden to a contractor for an undetermined amount of time, expected to have phone communication, and sitting at their desk waiting for your work at all hours of the day. A subcontractor is a person who provides a portion of the work or services on a project that the contractor has agreed to perform in any way they see fit, at any time they see fit.
If the employer retains the rights to dictate how they work should be done (e.g. demanding that they have a cell phone or be at their desk to receive your directions at a certain time), the worker is an employee. If the employer decides what work the workers will do and how to do it (e.g. sending me an email giving me orders of the next contract and then claiming I broke a contract because I wouldn’t do it without receiving payment on the last contract), the worker is an employee.
When a contractor contracts with a subcontractor, the contractor should only be interested in the end results. They decide what results are expected, but have no control over the methods used, the hours worked, or the mode of communication that get to that result.
In other words, you don’t own your subcontractor, and if you don’t like the methods used, you don’t have to contract them.
Subcontractors have the right to set their own hours, receive payments after the completion of a job, and in return, they provide the resources and materials they need and pay their own business expenses. They perform one job at a time and are paid by the job.
A subcontractor who is made to behave like an employee is an employee from the viewpoint of the US Internal Revenue Service.
Payment abuse against subcontractors is not uncommon, so I know I’m in good company. The extremely late payment, pay-if-paid clause in the contract I signed is actually listed as a form of payment abuse on Engineering News-Record because it leads to a lot of broken contracts. This is a clause that says that a subcontractor’s payment from the contractor is dependent on the contractor receiving payment from the client. While this may seem fine enough, it is payment abuse for a subcontractor, because the subcontractor has literally zero contact with the finances of the client. They had no opportunity to check the credit-worthiness of the client, vet the client, and they have no way of verifying if payment was received.
Of course in my case, the payment abuse and con didn’t come from that stupid clause. It came from a butthurt contractor deciding that they would con a small time designer who already ate 2/3 of the cost, and billed for 1/3 of the hours they worked. All because, gasp, the subcontractor wanted to see the completion of the first contract before taking on another.
Congratulations, you only proved my point – whether or not you understand how a contract works, you are now a contracting con-woman and therefore an asshole.
Oh, and your payment is five weeks late. Remit payment immediately before I use the same Internet surfing skills I did to learn how to fix all the crap keyword stuffing search engine optimization code you wrote to search my legal rights.