Assignment is a catchall term used to describe two different things: assignment of rights under the contract and delegation of duties. An assignment is the process by which rights or benefits under a contract are transferred to someone else. For example, the IC might assign to someone else the right to be paid the money due for performing services for you. Delegation is the flipside of assignment. Instead of transferring benefits under a contract, the duties are transferred. For example, an IC may delegate to someone else the duty to perform the services for which you’ve contracted.
Delegation of the IC’s duties is the most important issue here. You’ve hired the IC to do the job, but the IC might try to get someone else to do it in his or her place. Fortunately, the law protects you against an IC who tries to fob off the work on someone else. If the work the IC has agreed to do involves personal services, the IC cannot delegate it to someone else without your consent.
Examples of personal services include those by professionals such as lawyers, physicians or architects. When you hire an architect, he or she can’t pass your project to another architectural firm without your consent. Courts consider it unfair for either a client or IC to change horses in midstream. Services by IC writers, artists and musicians are also considered too personal to be delegated without the hiring firm’s consent.
Service contracts with ICs involving more mechanical tasks ordinarily are delegable without the hiring firm’s consent. For example, a contract to construct or paint a house would ordinarily be delegable. However, even in these cases, the IC can’t delegate his or her duties to a person who lacks the skill or experience to complete the work satisfactorily.
Your agreement need not mention assignment and delegation. The work will be assignable or delegable subject to the restrictions noted. This is the best option in most cases.
a. Assignment allowed
If you absolutely do not care who does the work required by the agreement, choose Alternative A to allow an unrestricted right of assignment and delegation.
This clause can help you if you are challenged on your treatment of the worker as an IC. It is strong evidence of an IC relationship because it shows you’re only concerned with results, not who achieves them. It also demonstrates your lack of control over the IC.
Note, however, that if you include this clause in the agreement, the restrictions on assignment and delegation discussed above will not apply—that is, the IC will be able to delegate his or her duties even if they involve personal services.
Suggested Language: Alternative A
Assignment
Either Contractor or Client may assign, delegate or subcontract any rights or obligations under this Agreement.
b. Approval required
There may be some situations in which you really don’t want an IC to assign his or her contractual duties without your consent. This is usually where you hire a particular IC because of his or her special expertise, reputation for performance or financial stability.
Suggested Language: Alternative B
Assignment
Contractor may not assign, delegate or subcontract any rights or obligations under this Agreement without Client’s prior written approval.