Independent Contractor – to be or not to be?

My last post about Waterkeeper Alliance vs. Perdue and Allen and Kristin Hudson brought out many issues associated with the case. The saga continues………..

The lawsuit is about pollutants finding their way to drainage ditches surrounding a chicken CAFO owned by the Hudson’s into a tributary of the Pocomoke River and eventually the Chesapeake Bay. It also questions ownership and responsibility of the waste discharged from the farm naming Perdue as the legal owner of the chickens that produce the waste.

On November 17, 2011 both sides in the case filed a motion for summary judgment and in doing so many legal documents in the case were made available to the public. Public perusal of these court records brings to light many other issues.

It’s hard for me to decide which of the other issues to start with.

Independent contractor status is a good place to begin. Contract poultry growers (chicken farmers) are classified as independent contractors by the companies they contract with to raise company owned chickens. The job of the farmer is to receive company chickens and raise them to a marketable age – PERIOD.

Not to put the chicken before the egg we have to look at where these contract chickens originate. It’s a complex web to untangle and there are many company steps involved before ever getting to the chicks placed on farms and grown. What is known is that the company designs, through genetic selection and engineering, what the final chicken will be. When placed on contract farms, the farmer has no choice or idea about the genetics, performance in growing of the chicken, or how much manure that chicken will produce.

Prior to chicks being placed on contract farms feed is delivered to the farm. This feed is formulated, mixed and delivered by the company. Feed ingredients are unknown to the famer and are a closely guarded secret claimed by companies to be a “trade secret”. The amount of feed delivered to the farm is unverifiable by the farmer and (s)he has to accept on “good faith” that the feed is what the company says it is. There are no options for contract farmers to acquire feed from another source because the contracts stipulate that feed comes from the company. This feed delivery process continues throughout the entire life cycle of the flock.

I have to insert here a few facts about the feed. Most people don’t understand that feed ingredient’s such as antibiotics/antimicrobials and arsenic isn’t the farmer’s choice to use or not use. This pertains to animal by-products in feed as well. Everything that goes into feed is decided by the chicken company and must be accepted and used by the farmer. Should a farmer decide to acquire feed from another source the farmer’s contract will be terminated.

The chicks delivered to contract farms derive from company owned hatcheries where the eggs are hatched into chicks. During the process at the company hatchery certain procedures could be performed such as in ovo injections of vaccines and antibiotics. In ovo is a process of injecting eggs before hatching and it’s anyone’s guess as to what is injected. Another company secret of which the farmer has no control over!

It could be assumed that the independent contractor, the farmer, comes into play once the chicks are on the farm for growing. That theory might hold water if the company only delivered the chicks and disappeared out of the raising process and returned to pick up the grown chickens for processing.

Throughout the flock company employees routinely come to the farm and manage the methods in which the farmer is raising the chickens. Court documents in the lawsuit revealed a company employee went so far as to leaving written instructions saying “need to work on these things ASAP’ and then listing things to be done. Some “notes” left by Perdue gave deadlines on work to be done and many notes referred to telling the farmer to do “heavy culling” (kill many chickens). If that is not telling the farmer what work to do, I’m at a loss to say what it is!

Other notes revealed that a Perdue employee set or adjusted equipment within the chicken house, moved fans around, culled chickens, and preformed many other tasks required in raising the chickens to a marketable age. These things are the job of the independent contractor not a company employee.

Again, I have to stop here and raise a question. Suppose some disaster should occur inside the chicken house because of the Perdue employee making a mistake in equipment adjustments such as ventilation and all of the chickens die (smother) – who would be responsible for the disaster? It’s my guess the blame would be laid at the farmer’s feet and income loss would be the farmer’s bitter pill to swallow. Having been a contract farmer I say this with ease because everything is always the farmers fault according to the company and there is no recourse for the farmer.

Reading court documents revealed that Perdue routinely performed farm operations inside of the chicken houses. It’s argued that the Perdue employee and Mr. Hudson had an understanding about this. The only time that I’m aware of the company coming on the farm, performing the daily tasks of the farmer, and caring for the flock would be if the company declared that the farmer was not doing his job and that the company was taking over. There is a clause in the contract that says that the company has the right to do that. However there are no supporting documents that say that Perdue made any such declaration or decision to take over the raising of the chickens on the Hudson farm.

Farmers have argued for a very long time that they aren’t independent contractors in their relationship with chicken companies. Independent – somebody or something that is free from control, dependence, or interference. Looking over court documents it’s clear that Perdue has some other definition of “independent”.

I remember a time in the early 1990’s Perdue declared all of its chicken catchers to be independent contractors. In the late 1990’s a lawsuit was filed against the company claiming that the chicken catchers were employees of the company not independent contractors. The lawsuit prevailed and a Federal Court found in favor of the chicken catcher’s. If memory serves me correctly, the court found Perdue willful in dealings with the chicken catchers.

Might Perdue also be willful in dealings with contract farmers?

Relevant legal documents and court pleadings

Thrown to the Wolves!

Up until now I’ve refrained from commenting about a monumental lawsuit which has been brewing in my neck of the woods, the Delmarva Peninsula.  I’ve done so because I knew that despite public persona there would come a time when the little guy in the case would be offered up as the sacrificial lamb.

The lawsuit filed by attorneys for the Waterkeepers Alliance (plaintiffs) against co-defendants Perdue and Alan and Kristin Hudson (defendants) claims discharge of pollutants from the Hudson’s farm in violation of the Clean Water Act and that Perdue has legal responsibility for it.

Locally known as the “Hudson Lawsuit” the case has a lot of history and has turned neighbor against neighbor.  At the crux of the issue is that the Hudson’s raise chickens under contract for Perdue and do so accordingly to dictates by the company.  Since the farmer doesn’t own the chickens or the feed they eat its questionable as to who owns the manure (chicken poop).

In the beginning, claims by the Hudson’s and Perdue were that photographs of mountains of manure stored on the Hudson farm were piles of bio-solids (waste) from Ocean City, MD not chicken poop.  Regardless of what was in the photographs, at issue is that the farm, that houses Perdue’s chickens, is a point source of discharge of nitrogen, phosphorous, and ammonia as well as bacteria (fecal coliform and E Coli) which the Waterkeeper Alliance sampled at high levels downstream from the farm and also citing on-site and leaving the farm sampling conducted by the Maryland Department of Environment (MDE).  Plaintiffs say this “confirms the poultry house pollutants are reaching the facility’s drainage ditches.”

The drainage ditches on the farm drain into Franklin Branch a tributary of the Pocomoke River which drains into the Chesapeake Bay.  Nitrogen and phosphorous have been long standing culprits in the killing of the Chesapeake Bay and efforts to clean up the Bay and revive it to its natural state have failed miserably over the years at the cost of millions to taxpayers.

We have a volatile mixture of people involved and interested in the outcome of the lawsuit and this is where the story gets really good.  Earlier motions filed by Perdue attempted to have the company dismissed as a defendant in the case which was denied.  This puts Big Chicken into hot water because if found guilty a precedent will be set for the country where corporate ag is responsible for the manure their animals produce.  I say “their animals” because legally they own the chickens, not the farmer.

Backing up Big Chicken are the usual attendees such as the Delmarva Poultry Industry INC. (DPI) the local industry trade union, allied industries and Farm Bureau.

Farmers have been propaganda-ized to the point of fearing for their livelihoods and believe that the environmentalists want to put them out of business.

The environmentalists, taxpayers, and the local public have become the nemesis of the farming community and are accused of not getting how it all works.  Outsider’s is what they’ve been labeled.

Just recently Maryland’s Governor, Martin O’Malley, stepped outside the bounds of legal decorum weighing in on the case and in a letter asked attorney’s for the plaintiffs to drop the case.

If anyone is confused by now don’t feel bad, you’re not alone.  I specifically recall asking the question in 1995 – who owns the manure.  In all of the initiatives set out toward cleaning up the Chesapeake Bay, no one, including our illustrious politicians, has answered that question in 16 years.  It’s come down to a lawsuit to determine the answer.

On November 17, 2011, court filings in U.S. District Court have asked for “summary judgment” in the case scheduled for a 3 week trial March 5, 2011.  Both sides presented arguments why the case should be resolved in their favor immediately.

This is where the story confirms my belief that the little guy (the farmer) would be thrown to the wolves.  Throughout the past couple of years Perdue and the camp followers have publically supported the Hudson’s, holding fund raisers for their legal defense fund and publishing a website in defense of the Hudson’s. Court documents recently filed cite internal Perdue email’s  – the Hudson Farm “is one of its 10 worst on the Eastern Shore of Maryland”.  This was based on an informal survey of Perdue farm managers.  I can only imagine what the farmer must think after staunchly defending Perdue.

Furthermore, in an effort to absolve the company from blame, Perdue legal arguments suggests ways that the judge could find the Hudson’s to be at fault for polluting – it was the Hudson’s cows that are the source of any pollutants.  I have to laugh because we have now moved from waste from Ocean City to waste from the cows.  In one deposition a suggestion is introduced that it was the wild geese.  Oh no folks, it can’t be from the chickens.

Perdue arguments also contend that Mr. Hudson “did not always follow Perdue’s advice”…  and “Mr. Hudson has not adopted various ‘best management practices,’ (such as hosing down the vents in a chicken house) recommended by Perdue.”

Could this be a case of “he who speaks with forked tongue”?  This is a perfect example of talking out of both sides of the mouth depending on who the target audience is at the moment.

I have to step up on my soap box…….  Big Chicken adamantly claims that they want to save farm families and then turn around and submit legal arguments to the contrary.  It reminds of little kids who get into trouble over something and they all claim “I didn’t do it” all the while coming up with some of the most ridiculous arguments as to why they shouldn’t be blamed and putting the blame off on another! PROPAGANDA – ized indeed!

Somewhere within the tangled web weaved practiced to deceive responsibility for pollution of the Chesapeake Bay from industry chicken poop will be decided.

I’ve spent countless hours reading over court documents.  Evasiveness and playing just plain dumb is the theme.  I especially loved reading some of the Perdue internal emails.  It’s quite obvious how the company big shots go about business.  One asks about farms that don’t have “curb appeal” meaning farms which don’t present a pretty picture.  Guess esthetically pleasing is now part of grower performance and whether the farmer has a contract to raise chickens for the company!

It’s my bet that the Hudson’s will not continue to contract with Perdue and more than likely any other chicken company on the Delmarva Peninsula.  It’s easy to sacrifice the little guy!

Relevant legal documents and court pleadings

Maryland Governor O’Malley Letter