CONSULTING SECTION PHILADELPHIA 2000 PROGRAMS
Mary K. Dzurinko
Past Chair, Consulting Section
17 July 2000
The Consulting Section sponsored two timely and successful sessions on home office workers and consultant contracts at the SLA Philadelphia Annual Conference in June 2000.
"My Office Is My Home and My
Home Is My Office"
Catherine Heslin, Heslin Information Services, Norristown, PA, Holly Bussey, Account Services Manager, EBSCO Information Services, and Maureen Kimball, Palinet Account Manager, Phhiladelphia, PA were panelists on the program.
Ms. Heslin spoke of the opportunities and challenges of working out of a home office. Home-based workers can establish flexible schedules, blocking out time for client projects, phone calls, and visits and they can be at home when necessary to manage personal responsibilities such as family care, equipment and home repairs, etc. Ms. Heslin stressed that a planned "at home" work schedule is a good guide to help keep you on track. She covered issues such as feelings of isolation, family issues, income taxes, office equipment and supplies, phone rates, and client bills. Ms. Heslin advised home workers to get involved in community based projects as they are a valuable source of future business contacts.
Ms. Bussey is a telecommuter who also works out of a home office. She presented "10 Ways to Manage Your Telecommuting Experience to Find Balance Between 'Work' and 'Home' Life":
1. At the beginning of each day, plan your strategy for that day. This is the time to consider what you need to get done during that day.
2. For most instances, you are not on call 24 hours a day, 7 days a week. You can managed your clients expectations by giving them specific times to call--office hours, if you will. ANY don't let them know you are working from home.
3. Make sure the appropriate people at your office are aware when you are available. (this applies if you're working for a parent company and not yourself). You might even want to agree on a specific time when everyone knows you can be reached. This may be part of the negotiation process when you talk bout telecommuting with management. They too must realize you aren't 24/7 ... in most cases. Be brave and structure this.
4. If you hear your office phone ring and you are 'not at work' DON'T
answer it.
5. This one will make you feel the most uncomfortable, I challenge you to
incorporate it ... Don't do email on the weekends. Email is the leader among all
stress-inducers in the office. Keep your 'snail mail' separate from your home mail. Use a PO box, or postal service agreement. When you bring mail home, TAKE IT TO THE OFFICE. Be deliberate.
6. Re-evaluate your everyday practices and lifestyle in regards to your telecommuting status. Ask questions. Be tough on yourself. Yearly, or bi-yearly, take a serious look at how things are going. Do you feel like you are in balance? Consider asking a partner or friend to evaluate your 'home/work performance.' Set criteria and then evaluate.
7. Remind yourself that you are allowed to have a life outside of work....DO IT OFTEN.
8. Consider developing a routine each morning to start your work day. It can really help you delineate your 'home' time from your 'work' time, e.g. it can be as simple as morning ablutions, getting dressed for work, etc; or having a cup of coffee and reading the newspaper scanning for relevant work-related articles.
9. Consider a ritual (or routine if
you like) to close your office for the day. Turning off the computer, filing,
straightening your desk, planning the next workday are all ways to ease
yourself out of your workday. While these last two things may seem
obvious, several psychology experts I spoke with on this subject have confirmed
that following the latter two steps help the mind separate its "work’ mode
from a ‘home’ mode. They are healthy practices to develop.
10. Learn to manage your office, your home, your social life, and your
personal needs. The operative word is 'manage'. When we hear that word, most
of us tend to think of it as a verb to be used in a professional setting. Managing is a concept that can apply to all elements of our lives … not just our professional ones.
Maureen Kimball, supplementing her colleagues’ presentations, encouraged attendees to pay particular attention to the handling of tax matters, planning of work schedules, and the monitoring of telecommuter employee benefits. She also discussed Palinet’s telecommuting policies.
"Is a Handshake Legal?
Contracts with Consultants."
Charles J. Partridge, Jr. of Semmes, Bowen, & Semmes and Ken Manahan of Anteon Corporation were panelists on the program "Is a Handshake Legal? Contracts with Consultants." The panelists discussed seller and buyer contract issues, explaining issues which apply to all contractual agreements..
Mr. Partridge is a Maryland attorney who advises small businesses. He offered the following contract consideration points from the buyer’s point of view:
I. Introduction
A. Scope of talk
1. Covered: Consultants' contracts, generally
2. Not covered: Special types of contracts, e.g., franchise, distribution agreements, interface between employer/employee and client/consultant arrangements
B. Basis of contract law ("you are making law")
1.
O + A = K (Offer + acceptance = contract ("K is widely used
symbol for "contract"). In a bi-lateral contract, i.e., on where each
party makes a promise of gives something, there comes a time in the
negotiations when the offer is matched by an identical acceptance. It is from
this point on that there is a contract, which may, or may not, have to be in
writing. The concept also applies in unilateral contracts, i.e., where there is
no back-and-forth, or even contract, between the parties, i.e., the offer a
reward for arrest and conviction … the offeror makes the offer and the offeree
"accepts" by doing the thing invited to be done. Manufacturers’
"cents-off" coupons are another example).
2. The need for writing a contract (Statute of Frauds)
II. Essential elements of contracts
A. Parties (third party beneficiaries)
B. Consideration
1. Concept
2. Fees
a. Basis of fee: hourly charges, fixed fee, contingent fee, etc.
b. How billed, paid (invoices, interest, charges, etc.)
c. Fee estimates
C. Expenses of consultant (travel, private databases, etc.)
1. How charged? "Cost plus"?
2. Prior approval of client needed? Above a certain amount?
D. Materials, tools
1. Who is to provide what?
1. Who is to procure, pay if must be secured from 3rd party? See "Expenses"
E. Term
1. How long does contract run?
2. Who can terminate, and on what notice, and for what (if any) reasons?
F. Scope of services (consider "Schedule")
G. Assignability
1. By client
2. By Consultant
III. Important bases client and/or consultant might wish to cover
A. Independent contractor status (income taxes, workers' comp., liability insurance)
B. Confidentiality of client info - intellectual property
1. Scope (public domain, consultant comes by another way, etc.)
2. Duration (survives completion of services, but for how long?)
2. Who has rights to patentable ideas? who pays for patent?
"shop rights"
C. Non-solicitation of client's employees by consultant
D. Subbing out part of the work - the terms of that
E. Liability of the consultant in case "problems arise"
1. Scope of work not related to results achieved by client
2. Liquidated damages
IV. Some practical tips
A. Integration ("we don't' need to put that in writing")
B. Consult an attorney ("well baby check")
Ken Manahan is a Contracts Administrator with Anteon Corp., an international technology firm which handles business and government contracts.
CONTRACTING WITH CONSULTANTS - FROM A BUYER’S PERSPECTIVE
I. Introduction
A. Definition of a Consultant
1. Webster Dictionary: A Person Who Gives Professional or Expert Advice
2. IRS: The Consultant Must Operate Independently from the Buyer
a. Location of Work
b. Will Clerical Support, Equipment, Or Supplies Be Furnished to the Consultant?
c. What Kind of Direction or Supervision Will the Consultant Receive?
B. Why Execute a Contract
C. Contract Terms & Conditions
a. Billing Rate
1. Hourly Labor Rate Per Hour to be Paid for Services Performed
2. Inclusive of All Costs - Labor; Overhead; Benefits Period of Performance
b. Period of Performance -- Length of Time for Which the Agreement Will be in Effect. Twelve Months is the Norm.
c. Payment Terms
1. Frequency of Payment to Consultant for Services
2. Normally Tied to Submission of a Monthly Status Report
d. Relationship of Parties
1. Independent Contractor - Not an Employee
2. Consultant Has No Authority to Bind Buyer
e. Taxes and Benefits
1. Consultant Responsible for Reporting All Income Received
2. Not Eligible to Receive Buyer Benefits - 401K; Training; Stock Options; Health Benefits
f. Intellectual Property Rights -- Assignment of Rights, Title, and Interest, to Inventions, Whether or Not Patentable, Including All Copyrightable Material Conceived or Made by Consultant in the Performance of Work for Buyer
a. Privity of Contract
1. Consultant Will Not Discuss Any Terms of the Contract With the Buyer’s Client
2. Consultant Will Not Take Direction from the Buyer’s Client
3. Buyer to be Notified if Client Attempts to Change Any Portion of the Agreement
a. Security
1. Consultant Will Comply With Any Security Requirements Imposed By Buyer
2. Maintain System of Security Controls in Accordance With the "National Industrial Security Program Manual"
i. Indemnification -- Buyer Is Not Liable For Any Loss of Life, Personal Injury, Damage to Property, or Warranties Which May Arise From Actions Taken By The Consultant
j. Insurance -- Basic Insurance Requirements The Consultant Must Have:
1. Workman’s Compensation
2. Comprehensive Liability Insurance & Property Damage Liability
3. Auto Liability
k. Hiring of Buyer’s Employees
1. Consultant Will Not Hire an Employee of the Buyer During the Period the Agreement is in Effect and for One Year Thereafter
2. Exception: Buyer’s Employee Inquires About a Job Based on Advertisement of Position
l. Stop Work Order
1. At Any Time Buyer May Issue a Stop Work Order in Writing
2. Buyer May Cancel the Stop Work Order or Terminate the Work
m. Injunction -- This Represents an Advance Agreement with the Consultant That the Breach of Any Provision Within the Contract Entitles the Buyer to Obtain Injunctive Relief
n. Applicable Law -- Legal Interpretation of the Contract Shall be Made Based on the Law of the State Specified in the Agreement
o. Notices -- Identification of Buyer and Consultant Individual to Whom Any Official Notice Shall be Deemed to Have Been Sufficiently Given
p. Order of Precedence -- Provides an Order of Precedence to be Followed in Case There is Any Discrepancy Between the Contract and Any Task Assignment Issued Against the Contract
q. Disputes -- If Both Parties Cannot Settle Disputes Among Themselves, They Must Then Enter into Mandatory Mediation, and Then, if Necessary, Binding Arbitration
r. Assignment and Subcontract -- Buyer Should Control Whether Consultant May Subcontract Work, or Assign the Agreement to Another Consultant
s. Supplemental Terms & Conditions -- Must Incorporate by Reference All Mandatory Federal Acquisition Regulation Clauses, and Should Incorporate Other Non-Mandatory Far Clauses
t. Confidential Information/Trade Secrets -- Consultant Agrees to Not Reveal Any Buyer Trade Secrets or Confidential Information to Any Other Party
D. Task Assignments -- Task Assignments Are Issued To Consultant Against The Agreement For Specific Work To Be Performed