| Pages in topic: < [1 2 3 4 5 6] > | Audit clause in freelance contracts - a breach of the other clients' NDAs Thread poster: Reea-Silvia Podeanu
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| When an irresistible force meets an immovable object... | Oct 25, 2017 |
Reea-Silvia Podeanu wrote:
At least this is what they told me when I told them that I cannot sign the contract with that clause in it.
And this clause specified clearly in all the contracts where I saw it, that we agree to let the agency or any representative of their choosing to come in my office (which is, of course, at home for any freelancer) and check the premises and the computer for security threats.
And those agencies seemed to be normal agencies. I didn't look for agencies who work with the government, army etc. On the contrary.
I have seen a clause like that, and told the agency that they would not allow me to come and audit them or accept that other agencies audited my computer and found their files etc. while I was working on them. It is not the kind of agency you want to work with anyway, and most other translators will refuse too.
Normal agencies would not insist on terms like that, and it must not become normal. Simply say you will not work on those terms, and move on. When they are so insistent that you are not an employee and totally independent of them, they have to accept your independent decision that they cannot then dictate how you work!
Don't let yourself be pushed about, just because you are 'smaller' than they are. Without translators, agencies have no reason for existence. There ARE agencies who appreciate professional translators and it is a pleasure to work with them - drop this one and look for better business partners!
| | | | | The problem is... | Oct 25, 2017 |
It is NOT one client or offer. In the last few months have been around 5 or 6 new clients with this clause.
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If this is a fundamental term of a contract, if you do not agree to it, and the client says it is compulsory, you have three choices:
- accept
- refuse
- check official legal sources to find of if this term can be imposed.
Most, but not all, states have similar principles for the basic elements of contract law. One common basic principle is that the parties can agree to what they want, as long as none of the terms is illegal. My question is therefore: it is legal f... See more If this is a fundamental term of a contract, if you do not agree to it, and the client says it is compulsory, you have three choices:
- accept
- refuse
- check official legal sources to find of if this term can be imposed.
Most, but not all, states have similar principles for the basic elements of contract law. One common basic principle is that the parties can agree to what they want, as long as none of the terms is illegal. My question is therefore: it is legal for the client to impose this term in a contract? It might be important or necessary to find out, particularly if it is becoming common in contracts you are being offered. If it is just with this agency, then you can go for option 2 (refuse). ▲ Collapse
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Christine Andersen wrote:
I have seen a clause like that, and told the agency that they would not allow me to come and audit them or accept that other agencies audited my computer and found their files etc. while I was working on them. It is not the kind of agency you want to work with anyway, and most other translators will refuse too.
I am afraid many translators just sign away, either because they think the provision of that clause will never be enforced, or, even worse, because they might think that's a "standard" clause... Speaking of which, I still think ProZ didn't really do us (and the translation industry) a service by introducing the "securepro" thing and basically codifying similar clauses, as that will further contribute to their "normalization" (as with other practices, such as the inversion of seller-buyer negotiations, "advertising" of low rates, etc.).
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This should not be a part of the security card. We should ask ProZ to remove it so that to stop encourage the introduction of such clauses in standard contracts.
| | | | | Home audit: 37% willing to comply as standard, 42% depending on terms, 19% refuse outright (2% na) | Oct 25, 2017 |
This is a real issue for the translation industry right now. It is not starting with the LSPs, and it is certainly not starting with ProZ.com; some end clients are requiring this of LSPs (perhaps due to requirements placed on them or their interpretation of their responsibilities), and the LSPs are in turn are passing along the requirement. Many translators are signing, some knowingly, and some without having read the details of the NDA. It is good that awareness is being raised.
Wh... See more This is a real issue for the translation industry right now. It is not starting with the LSPs, and it is certainly not starting with ProZ.com; some end clients are requiring this of LSPs (perhaps due to requirements placed on them or their interpretation of their responsibilities), and the LSPs are in turn are passing along the requirement. Many translators are signing, some knowingly, and some without having read the details of the NDA. It is good that awareness is being raised.
When asked here what their policy is on this practice, we see that 37% of respondents are willing to comply with the home audit term as standard, 42% are willing to consider agreeing to it, depending on the overall project, and 19% indicate that they would not agree to this, regardless of other contract terms. (2% explicitly indicate a choice not to state a position on this.)
"Home audit" is one of the more controversial terms appearing in NDAs at this time. ▲ Collapse
| | | | | The requirement came first | Oct 25, 2017 |
Reea-Silvia Podeanu wrote:
This should not be a part of the security card. We should ask ProZ to remove it so that to stop encourage the introduction of such clauses in standard contracts.
The requirement is coming from attorneys in global 500 firms, who are in some cases reacting to legislation passed by governments, and the indications are that this issue is likely to increase, not decrease. Translators are not driving the phenomenon, ProZ.com is not driving it; SecurePRO is simply a tool created in light of the trends. The idea that it could somehow be a cause is contradicted by both the chronology and common sense. Governments are not passing laws based on features in ProZ.com forms.
See this thread from 2011...
| | | | | I am sorry... | Oct 25, 2017 |
I didn't say it is ProZ's fault. With respect, if you would have read one of my posts above you could have seen that I said it is an option on the ProZ secure card. But, with the same respect, even as an option this should not exist.
Also, with respect to the mentioned lawyers they have no right to force us to accept such a clause. It is abusive on many levels, an invasion of privacy, and a breach of our fundamental rights. This clause should exist maybe for companies not for freela... See more I didn't say it is ProZ's fault. With respect, if you would have read one of my posts above you could have seen that I said it is an option on the ProZ secure card. But, with the same respect, even as an option this should not exist.
Also, with respect to the mentioned lawyers they have no right to force us to accept such a clause. It is abusive on many levels, an invasion of privacy, and a breach of our fundamental rights. This clause should exist maybe for companies not for freelancers.
I don't care what paranoid law makers decided that this is a need. We functioned very well so far. It should continue to work like this. As simple as that. If this will escalate we all should retire.
Anyway, please, spread the word. I was even thinking to start a petition... we'll see.
[Edited at 2017-10-25 16:25 GMT] ▲ Collapse
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Henry Dotterer wrote:
Governments are not passing laws based on features in ProZ.com forms.
Well, of course not. Ouf!, as the French would say. You had me worried for a minute there. Then again...
What about a translator who works in an external office? Were I to sign an NDA with this type of clause, would that mean that I would be granting free rein of my external office and my home? Does this type of clause provide for a reciprocal arrangement? Would I too be allowed to require access to my clients' offices and/or homes? I think this confers rights on clients that I would expect the State to have, and for which they have to obtain authorization in most circumstances. Should I seriously be expected to entitle private entities to have such rights? Is this really constitutional? It smacks of paranoia.
[Edited at 2017-10-25 16:20 GMT]
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It is my humble opinion that those 37% of translators who are willing to accept this as a standard didn't realize that this clause breaches the NDAs they signed with other agencies... Maybe this will help them see the facts as they are.
And... Nikki, very well put. I agree.
It is profoundly unconstitutional and most probably in total breach of the human rights. I will have to check.
[Edited at 2017... See more It is my humble opinion that those 37% of translators who are willing to accept this as a standard didn't realize that this clause breaches the NDAs they signed with other agencies... Maybe this will help them see the facts as they are.
And... Nikki, very well put. I agree.
It is profoundly unconstitutional and most probably in total breach of the human rights. I will have to check.
[Edited at 2017-10-25 16:24 GMT] ▲ Collapse
| | | | | Could you be more specific? | Oct 25, 2017 |
Henry Dotterer wrote: Reea-Silvia Podeanu wrote:
This should not be a part of the security card. We should ask ProZ to remove it so that to stop encourage the introduction of such clauses in standard contracts. The requirement is coming from attorneys in global 500 firms, who are in some cases reacting to legislation passed by governments, and the indications are that this issue is likely to increase, not decrease. See this thread from 2011...
Which legislation? Which governments?
| | | | | So it's typical management nonsense | Oct 25, 2017 |
Apparently this is a case of being seen to do something rather than doing something.
As long as large companies and governments leak like sieves because management have failed to implement a proper security structure in their organisations, with the result that millions of people's private data is regularly leaked, what does it help to put audit clauses in individual translators' NDA's?
Of course it's much easier to push individual translators around than implementing p... See more Apparently this is a case of being seen to do something rather than doing something.
As long as large companies and governments leak like sieves because management have failed to implement a proper security structure in their organisations, with the result that millions of people's private data is regularly leaked, what does it help to put audit clauses in individual translators' NDA's?
Of course it's much easier to push individual translators around than implementing proper security procedures in a large company, so it's the principle of least effort we see in action here. By having audit clauses, outsourcers can pretend they meet proper security standards.
As it has been mentioned, such audits could breach NDAs, as client A could end up getting access to client B's data during an audit. To prevent this, audits would have to be carried out be specialists verified as independent.
I would be prepared to document things such as which security software I use, but not allow anyone into my home, and not allow anyone access to my computer.
Not the fault of Proz, of course. ▲ Collapse
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| With respect, Thomas... | Oct 25, 2017 |
Thomas T. Frost wrote:
To prevent this, audits would have to be carried out be specialists verified as independent.
I am sorry, but you did hear about bribery, right? Even an independent auditor can be bribed or coerced or God know what else to do exactly what I said, plant bugs in the office, software in computers, steal data etc...
No... I am sorry, but this clause is NOT acceptable in ANY form in ANY circumstance!
They will have to trust us the way we trust them that they will pay us and the way we trust them with our personal and payments details which are very sensitive for us, too.
[Edited at 2017-10-25 16:41 GMT]
| | | | | Might not be a bad idea | Oct 25, 2017 |
Reea-Silvia Podeanu wrote:
I didn't say it is ProZ's fault.
And I didn't say that you did. I did read your posts, but my post was not necessarily a reply to yours.
But, with the same respect, even as an option this should not exist.
I disagree. I think that the best way to deal with something is to address it. I wouldn't think that acting as though the clause does not exist (not that you are suggesting that) is going to make it go away.
Also, with respect to the mentioned lawyers they have no right to force us to accept such a clause. It is abusive on many levels, an invasion of privacy, and a breach of our fundamental rights. This clause should exist for companies not for freelancers.
I am not disgreeing with you, but I am also not taking a side. ProZ.com is a facilitator. That this type of clause is being requested, and that some LSPs and freelancers are agreeing to it, is a fact. This fact is now reflected in SecurePRO data (which, by the way, serves the positive role of informing discussions such as this.)
If I were asked my personal opinion, I would say that this is not an area of expertise for me, but I would not be surprised if an argument could be made along the lines you are making it, at least that granting access to a computer that contains other clients' confidential files is a more complicated thing than it is currently being treated as.
I was even thinking to start a petition... we'll see.
Might be a good idea. That approach would be more likely to accomplish something, in my opinion, than removing the option from the SecurePRO form.
| | | | | Larger global trend | Oct 25, 2017 |
Teresa Borges wrote:
Which legislation? Which governments?
Hi Teresa. I see these developments as part of the larger global trend toward increasing security requirements, which seems to me to be affecting many or most industries: medical, financial, food, travel and so on. Maybe you have experienced this first-hand as a patient or consumer, but certainly if you search "regulatory compliance" together with any industry name you choose, I think you'll get lists of laws, standards and other external regulations that companies that outsource translation may be subject to, and possibly/probably so throughout their supply chains. Here is a page I found that addresses the topic generally: http://www.bakertilly.com/services/risk-internal-audit-cybersecurity/regulatory-compliance/ ("Nearly 70 percent of companies are subject to five or more regulatory requirements. Intensified government scrutiny continues to raise this bar, further increasing the risk of noncompliance.")
I don't think there is anyone in our industry sitting around thinking about what additional burden they can put on themselves by introducing clauses such as home audit, with all the friction that surrounds it. It is more likely need, or at least perceived need, to do so in order to comply with external or customer requirements.
And by the way, I think Thomas has a point. I have been asking around for whether anyone has actually ever done a home audit, and so far no one I have talked to has even heard of one being done. (Has anyone reading this heard of it?)
Of course it may be that the situation is still developing.
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