Depends on the culture of the people. I have experienced numerous instances where an Indian candidate is not who they claim to be. Person X is hired, person Y shows up. Person X conducts the phone interview for person Y. And so on. And this has happened for not just me.
He's a contractor. That's the difference between him and an employee: He chooses the time, place, and manner of his work, including subcontracting it. If he's not allowed to do this, chances are you have an employee.
i'm not sure what you mean. do you have some reference to point to that says a "contractor" can't be expected to not sub-contract or work in a particular place and time? i'm honestly curious.
You don’t get to enforce when and where a contractor works. They can perhaps agree to it to keep a good relationship, but they are not obligated, and if they change their mind the only thing you can do is fire them.
You also don’t get to choose how they do their job. If they agreed to do something for a given price, they can do it how they see fit, even hiring a subcontractor. Don’t like it? Don’t hire them.
If you want control of both of those things, you want an employee. Now, there’s plenty of contractors that will behave like employees for you, if it gets their foot in the door, but if the IRS finds out you could be in trouble.
> You also don’t get to choose how they do their job. If they agreed to do something for a given price, they can do it how they see fit, even hiring a subcontractor. Don’t like it? Don’t hire them.
So, if I want to contract Beyonce to sing at my wedding, I need to make her my employee or she can legally send someone else to do it?
No that's the same as requiring software to be written in Java. That's allowed as you have a business interest. But banning a contractor to use additional employees/subcontractors for their work is not your business, unless it's an employee. Sensitive information can restrict this but you wouldn't send those to a contractor anyway, in this case they'd likely work in-house.
thanks, but i'm hoping for something more specific. like a us code or something. i'm skeptical that you're speaking to something that actually exists, but i'm happy to see evidence of what you're talking about.
> You don’t get to enforce when and where a contractor works.
i'm not sure what you mean by "enforce" exactly, other than perhaps you mean to say a contract is not allowed to stipulate that, for example, a contractor work during the day to coordinate with others, or work on-site to handle materials in a secure location, or not hand privileged or sensitive data over to unknown random people.
> Where do you work?
at a large company that has both employees and contractors.
He's talking about the actual definition of contractor according to US law. If a person does not have the right to choose how, where, when, and by what means the work is done, they're not a contractor.
this is interesting heuristic guidance on taxes, but this doesn't describe labor or contract law, as far as i can tell.
your link even notes:
> There is no “magic” or set number of factors that “makes” the worker an employee or an independent contractor, and no one factor stands alone in making this determination. Also, factors which are relevant in one situation may not be relevant in another.
> “You are not an independent contractor if you perform services that can be controlled by an employer -- what will be done and how it will be done, the IRS rule says. “This applies even if you are given freedom of action. What matters is that the employer has the legal right to control the details of how the services are performed.”
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
do 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.
If 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
Absolutely 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.
i 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.
I 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
Just 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.
That 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
I 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.
That'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?
Not true, limitations on subcontracting (or at least limiting it to approved subcontractors) are allowed and common. Just because he’s a contractor doesn’t mean NDAs are meaningless.
Limiting work to people with security clearances is an example of ok limitations. Adding so many limits that the acceptable people to do work are the single contractor means youve jaut made a constructive way to get around hiring a person as an employee
your statements are unsupported. It is my observation that you are stating spirit of law to your understanding, but not what occurs in law or practice.
This contractor is working onsite during normal working hours. I am not even judging the situation but from what I can see he is not doing anything himself. He also got hired with the assumption that he would do the work.
Not in my experience. But doing an on-site interview in India is the exception, not the rule. (Note: I’ve done both). And when an “on-site” interview is done, make sure you’re the one who is on-site, and not an Indian agent. Their caste system makes it hard for “others” to be people, and we all know what happens when you dehumanize others.
Let me relate a true story, and then discuss some implications. After dinner one night, many years ago, an Indian co-worker and I started discussing politics. The Indian wanted to know why we didn’t nuke Pakistan in our hunt for bin Laden. I said that the fallout would kill tens, if not hundreds, of thousands of his countrymen. His response? “They’re excess people.”
If you don’t care about others, then you will use the “other” for your benefit - not mutual benefit. You will be used, you will be lied to, and the political maneuvering will be slanted against you.
Note that this isn’t limited to Indians. It’s, unfortunately, becoming more prevelant in American society, too. In a shrinking world, tribalism (aka identity politics) will be an increasing problem. But Indians have been practicing it for 6K years, so they’re especially good at it.
How is it racism to say India has a caste system and they've had a lot of practice? It has nothing to do with the colour of their skin (or whatever else you usually base "race" on - I'm not from a culture that uses it like that so I don't understand fully), rather it's a given of the country.
