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Exclusivity clause for freelancers?
Thread poster: Catherine Bolton

Catherine Bolton  Identity Verified
Local time: 10:43
Member (2002)
Italian to English
+ ...
Apr 5, 2002

I\'d be interested in input from freelancers, particularly my colleagues here in Italy.

Here\'s the story.

I have worked for two local agencies, A and B, for 8 and 4 years, respectively. They have long been at war with each other, but not with any other agencies around here. For A, I do commercial/legal stuff and for B I only do books and art catalogues.

In January, Agency A decided to have its translators sign a contract in which the translator pledges never to work for B (or C, but I don\'t work for them anyway).

I refused to sign the contract, first of all because there is no conflict of interest in my case, but also as a matter of principle.

I talked to Agency A again yesterday and said it\'s hardly fair to limit where a freelancer works. The owner said that exclusivity clauses are standard (I\'ve never seen one!), to which I replied that if you want exclusive rights you should pay for them, at least guaranteeing a minimum amount of work a month, to compensate for the work you are NOT accepting from others.

I would like to hear what others think about this.

[ This Message was edited by: on 2002-04-05 05:52 ]


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xxxTanuki
Japanese to Italian
+ ...
Two households, both alike in dignity... Apr 5, 2002

IMHO,

you had every right to refuse.



Exclusivity clauses are not standard for freelancers, and, were a freelancer to sign such a contract (i.e., de facto becoming in-house), it would only be fair to get a retainer fee in exchange.

The minimum amount of work is wholly another issue.

In the above case, a steady workflow should have to be expected, of course. Nevertheless, in principle agency A should pay in order to exclusively avail itself of the services of a freelancer.



Best,



Tanuki





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Derek Smith  Identity Verified
Local time: 10:43
Italian to English
+ ...
Back to the middle ages Apr 5, 2002

From my own experience, I can\'t understand why they don\'t just chain you to the desk - standard practice in other parts of Italy, at least until about 800 years ago.

On a more serious note, I certainly hope none of their translators will submit to this outrage.

Derek


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Ken Cox  Identity Verified
Local time: 10:43
German to English
+ ...
hmmm... Apr 5, 2002

My guess is that you should consult a good lawyer. if you sign an exclusivity contract with one of the agencies, then as you say you should get something in return. The agency is obviously trying to use their freelancers as weapons in their way with their competitor; this may even be illegal. Personally, I\'ve never seen this sort of exclusivity clause, and at least here in the Netherlands I would also be reluctant (to say the least) to sign such an agreement, since the tax office would consider it an indication that I am not actually self-employed.

Good luck!


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Marijke Singer  Identity Verified
United Kingdom
Local time: 09:43
Member
Dutch to English
+ ...
Kenneth is absolutely right Apr 5, 2002

If you are a freelance translator then it means that nobody has exclusive rights to your services. Should anybody want exclusive rights to your services then they should pay for them or employ you. My company based in the Netherlands has such an exclusive contract but it only refers to our availability for this one company and they pay us for a minimum amount of hours per month regardless of whether we actually do some work for them or not. It is a sort of \'retainer\' contract. The clause does not include anything that refers to working for the competition.



In the Netherlands there are various agencies that will check contracts for you on an ad hoc basis. Maybe there are a few in Italy? If not, your best bet is to go to a lawyer.


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bochkor
Local time: 04:43
English to German
+ ...
The owner is BSing you! Apr 5, 2002

I totally agree with Ken. No way that such an exclusivity clause is a standard! The owner is giving you baloney, because he knows that you are too nice and not demanding, so he\'s taking advantage of that.



So what do you have to do? Stop being nice and tell him in his face that you know why his doing it (to give a blow to the competition) and that the only thing he can achieve by this is not that the competition loses you, but that he will lose you.



So tell him openly that you also have been inthe business for many years and there are only \"confidentiality agreements\", which limit the translator only not to solicit work directly from a client of the agency and even that only as long as you are working for that agency. Exclusivity agreements regarding working for other agencies simply don\'t exist (have him one show to you, if he\'s so cocky!).



And ask him finally the question: can you afford to lose a good, valuable translator like me, with whom you have worked for years? If he says, he can, you should say \"goodbye then\", because then he has never appreceiated you, rather he was trying to own you!



And as a freelancer you should never rely on 2 agencies alone, so explore you\'re options (that\'s what ProZ is for, the agencies don\'t have to be in your city) and apply with many more! And regarding self-confidence, please, realize that you are a valuable translator, anyway, on the market, no matter what he says. It\'s just hard for you to give up the convenient life of constant work from these 2 agenciesm and enter the lifestyle of constantly contacting agencies and bidding for jobs without a stop. But get your feet wet and once you\'ll get the hang of it, you\'ll feel more comfortable with it and then your job security will be even higher, than you think now is.



So don\'t let him intimidate you, speak up and put him before a choice!



P.S.: A lawyer is absolutely not necessary, just a waste of your money. This agency\'s owner is pressuring you, so pressure him back, that\'s the best thing to do. Once he realizes how quickly he can lose you, he will talk differently. And don\'t fall for sentences like \"Oh, I have many other translators beside you\"! Then you tell him \"And how many good ones you have?\" And if he says all are good, then just say \"Alright then, so you don\'t mind, if I leave then by not signing this exclusivity agreement?\" And if he says no, he doesn\'t, then really get out the door ASAP!

[ This Message was edited by: on 2002-04-05 10:03 ]


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FrancescoP  Identity Verified
United States
Local time: 01:43
English to Italian
+ ...
A non-disclosure agreement would be fine. Apr 5, 2002

Unfortunately, I have heard this story before. It never happened to me, I just heard of it in the past. Your observations are absolutely right. I too under the same circumstances, would never sign any contract like this.



If they want you to work exclusively for them, they have to pay a fair amount of money for it. Just make sure your agreement does not only imply that they will provide a certain amount of work on a monthly basis but also that you will be paid a fair reward for all the clients you are going to loose (you cannot keep them in stand-by, can you?) and that you can rescind the contract whenever you want to. Last but not the least, state your rates!



Whereas if their solely purpose is to avoid any possible conflicts of interest (quite a delicate subject in Italy…), a non-disclosure agreement would do just fine.



Watch out!



FP


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Catherine Bolton  Identity Verified
Local time: 10:43
Member (2002)
Italian to English
+ ...
TOPIC STARTER
an update Apr 5, 2002

Thanks so much to all of you for responding. First I\'ll address Francesco\'s comment: there is ALSO a non-disclosure clause, so that\'s not the point. The point is, as all of you have rightly guessed, trying to sock it to each other.

Agency A is now willing to let me work for B, but won\'t take out the clause about Agency C. As I said, I have never even contacted C, but my concern is that if I agree to limit my work in relation to ANYONE, then one day down the road Agency A can come to me saying that now Agency D has set up a business it finds threatening and they want me agree not to work for them either.

Thus, in my mind, principle is principle.

I have done some mental arithmetic and can afford to do without the agency and this headache!

[ This Message was edited by: on 2002-04-05 12:23 ]


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Eivind Lilleskjaeret  Identity Verified
Local time: 10:43
Member (2004)
English to Norwegian
+ ...
How will agency A enforce the clause? Apr 5, 2002

I fully agree with the previous comments; and yes, procuring the services of a lawyer for a case like this would IMO be a waste of money. So the only thing I have to add, in addition to never having heard of such contracts either, is how does agency A intend to enforce the exclusivity clause? Do they rely on industrial espionage for their business? Are they tapping into agency B/C\'s phone lines, their database? Have they placed an undercover agent in agency B/C? This whole thing is almost too ridiculous to be true.

If agency A is otherwise a serious agency & has a good payment record, I don\'t believe I would be as confrontational about it as some of the others here recommend. It may turn out to be an act of panic, and that they will listen to reason when the dust has settled.

[ This Message was edited by: on 2002-04-05 12:28 ]


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Silvina Beatriz Codina  Identity Verified
Argentina
Local time: 05:43
Member (2002)
English to Spanish
+ ...
How ridiculous... Apr 5, 2002

I\'ve never heard of this, it is perfectly preposterous. No such contracts are standard, the only standard agreement is, as others have pointed out, a confidentiality agreement, with non-disclosure/non-soliciting clauses.



If you really think about it, if an agency demands that you should work for them exclusively, then they should keep you as a regular employee and pay you a salary, because, if you don\'t get work from them (and I guess you don\'t get work from them all the time), what are you going to do? Besides, as Laszlo says, you should never limit yourself to one or two agencies, no matter how much work they give you, because if one or both of them drops you (and this may happen due to circumstances totally unrelated to you or your work), you are left hi & dri. Do your marketing whenever you are not busy, and with time you\'ll build a solid client base. In this case, if a single client places you in a ridiculous situation such as the one you describe, you can just laugh and move on.



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FrancescoP  Identity Verified
United States
Local time: 01:43
English to Italian
+ ...
I agree with Eivind Apr 5, 2002

Very funny comment. If I may add, jokingly (half):



If Translation agency A is really good, why would it insist on an exclusivity clause? If it\'s that good, why would you look anywhere else? You wouldn\'t!



In the end I think you made the right decision...



FP


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Catherine Bolton  Identity Verified
Local time: 10:43
Member (2002)
Italian to English
+ ...
TOPIC STARTER
For Derek, for the sake of statistics Apr 5, 2002

I forgot to mention that the agency told me that out of 180 translators to whom the contract was sent, only two of us refused to sign it! So they can\'t understand why I won\'t.

Guess some people are just more desperate than others.


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Werner George Patels, M.A., C.Tran.(ATIO)
Local time: 04:43
German to English
+ ...
A bunch of crap! Apr 5, 2002

Pardon my French, but that\'s the truth. No agency can force you to work for them only. If that\'s what they want, they should employ you full-time (with all the fringe benefits, etc.).



This kind of clause, in my opinion, is illegal - especially from the point of view of competition. With this clause, they try to restrict competition. You should report them to the relevant department.


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Giovanni Guarnieri MITI, MIL  Identity Verified
United Kingdom
Local time: 09:43
Member (2004)
English to Italian
Clever clogs? Not! Apr 5, 2002

If they are trying to restrict competition, that surely is illegal and I would be careful. 180 translators signed such a thing? Wow! I\'m amazed! Surely, they are not getting more work because of it from this agency and they should be compensated for missing out on other assignments. I would never sign such a thing, unless they guarantee me - with a contract - an X amount of work per year.

Uomo (o donna nel tuo caso) avvisato, mezzo salvato.



Giovanni


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bochkor
Local time: 04:43
English to German
+ ...
How do you know it's true and even if? Apr 5, 2002

Quote:


On 2002-04-05 15:32, cbolton wrote:

I forgot to mention that the agency told me that out of 180 translators to whom the contract was sent, only two of us refused to sign it! So they can\'t understand why I won\'t.

Guess some people are just more desperate than others.





They always try these isolation tactics: to tell you that you\'re in minority, so you should cave in. They\'re trying to manipulate you, don\'t let them!



Onthe other hand, how do you know it\'s true about the 180 employees? Most of the time they\'re just saying it, but never show you any records, because that would hurt their pride. But then there\'s no proof, just their word!



And even if there\'s a slight chance of having 180 submissive translators, I\'ve seen quite a few of such unclearly thinking, servile translators who don\'t know their interests, even here on ProZ. It\'s just a fact of life that we unfortunately have those people, too, in our societies, who drag down our reputation, chances and prices. Hungarian proverb: Everyone is the (lock)smith his own success. So you are you and no intimidation and lies are gonna change that! You make your own decisions, so you\'ve very right to drop this agency like a hot potato, if that\'s their attitude!



A retainer fee or some other guarantee of steady workflow, etc. just wreaks of \"common law employment\" to me, basically, which I think you should avoid. Employment pays a lot less, so they will always try to get close to that low salary amount, pointing out how many jobs they give you, even if it\'s legally a non-employee relationship. So simply don\'t budge, don\'t give in to exclusivity, so you can keep your fees high!



And I agree with Werner to report them to the appropriate authorities for restriction of competition, which very well might be illegal, just do your homework to find out! And forget about lawyers, just pick up the phone and call up a few departments/ministries, whatever they\'re called in Italy, you\'ll get the information! And once you have it, confront this owner with it, so he\'d realize finally, what he\'s doing!



But even if he wakes up and changes his mind, treat this agency with less priority from now on, because even the idea of this was disgusting in the first place! And about being confrontational or not: you always have to be, otherwise you won\'t get anything, if you don\'t ask for it! Many people even deliberately look for weak points in others with the goal to take advantage of them. So don\'t be one of those they CAN use! And you should certainly be able to afford to lose those users, to say the least (I don\'t want to be more drastic, than that on ProZ)!

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