Food is not always something that you put in your mouth and eat!

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. Independentsomebody 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

Comments on: "Independent Contractor – to be or not to be?" (11)

  1. Craig Watts said:

    This is straight from the IRS..

    “Behavioral Control

    Behavioral control refers to facts that show whether there is a right to direct or control how the worker does the work. A worker is an employee when the business has the right to direct and control the worker. The business does not have to actually direct or control the way the work is done – as long as the employer has the right to direct and control the work.

    The behavioral control factors fall into the categories of:

    Type of instructions given
    Degree of instruction
    Evaluation systems
    Training
    Types of Instructions Given
    An employee is generally subject to the business’s instructions about when, where, and how to work. All of the following are examples of types of instructions about how to do work.

    When and where to do the work.
    What tools or equipment to use.
    What workers to hire or to assist with the work.
    Where to purchase supplies and services.
    What work must be performed by a specified individual.
    What order or sequence to follow when performing the work.
    Degree of Instruction
    Degree of Instruction means that the more detailed the instructions, the more control the business exercises over the worker. More detailed instructions indicate that the worker is an employee. Less detailed instructions reflects less control, indicating that the worker is more likely an independent contractor.

    Note: The amount of instruction needed varies among different jobs. Even if no instructions are given, sufficient behavioral control may exist if the employer has the right to control how the work results are achieved. A business may lack the knowledge to instruct some highly specialized professionals; in other cases, the task may require little or no instruction. The key consideration is whether the business has retained the right to control the details of a worker’s performance or instead has given up that right.

    Evaluation System
    If an evaluation system measures the details of how the work is performed, then these factors would point to an employee.

    If the evaluation system measures just the end result, then this can point to either an independent contractor or an employee.

    Training
    If the business provides the worker with training on how to do the job, this indicates that the business wants the job done in a particular way. This is strong evidence that the worker is an employee. Periodic or on-going training about procedures and methods is even stronger evidence of an employer-employee relationship. However, independent contractors ordinarily use their own methods.”

    References/Related topics
    Independent Contractor (Self-Employed) or Employee?

    And there is lots more to support the fact that if we are indpendent contractors then I am in fact the head of Mensa..

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  2. Poultry farmers are independent contractors because despite the facts, federal judges are allowing them to be called such so that major fraudsters in our economy can get away with harvesting the fruits of the land to satiate their own greed and write that story through our legal and political system.

    Our country is being hijacked by the 1% who make the rules for themselves. They are allowed to do it because we have a tidal wave of federal judges who allow their lawyers to manipulate all language and legal thought to do so. It is all about the principals with the money and power, and has nothing to do with the principles involved.

    Tom

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  3. There is no question that contract farmers aren’t even close to being legal “independent contractors”.

    Question: if you bought feed elsewhere and the company terminated your contract, would you have to reimburse the company for the chickens, feed and other expenses made? Are there liens and other issues that would result?

    Also, does the company provide the litter? I was kind of taken with the part in the movie Fresh where the company delivered litter that was clearly marked to be hazardous & the farmers having to wear masks…

    Does anybody know the actual contents of the bedding waste that’s being spread on fields?

    Thanks so much for all your great work – you have a real talent for making these issues understandable (as if anyone could really understand how such craziness could exist…)

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  4. Violette said:

    .

    This is interesting. It’s from 2007 but I wonder if it still applies. It’s from the Rubin Law Firm (Rockville, MD) blog

    Friday, April 13, 2007

    Are You Really an Independent Contractor?

    Monday is tax day. Is the individual responsible for payroll taxes or is the employer? Is the individual entitled to overtime for working more than 40 hours in a week. It may depend on whether the individual is an independent contractor or an employee. How can you tell?

    One place to start is Maryland’s unemployment law. That law provides a narrow (perhaps the narrowest) definition of an independent contractor. The law states an individual is an independent contractor if:

    (1) the individual who performs the work is free from control and direction over
    its performance both in fact and under the contract;

    (2) the individual customarily is engaged in an independent business or occupation of the same nature as that involved in the work; and

    (3) the work is: (i) outside of the usual course of business of the person for whom the work is performed; or (ii) performed outside of any place of business of the person for whom the work is performed. (emphasis added)
    The Court of Appeals interpreted the statute in DLLR v. Fox. There the Court held that hygienists (and other professionals) were employed by the agency that placed them in temporary positions in the Baltimore area. Why? The hygienists were not “free from control” by the agency. The agency “controlled” the hygienists’ placement and pay rate. (As a result the agency had to pay back unemployment tax premiums for hygienists).

    Again, the Maryland unemployment law independent contractor test is one of the most restrictive. The IRS and common law tests are slightly different. But, if your employer controls your work and sets your pay you may well be an employee entitled to unemployment benefits.

    Do you believe you have been misclassified as an independent contractor? Contact me.

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    • Craig Watts said:

      In any reasonable person’s mind there is not a belief that we have been misclassified but overwhelming evidence…but we are living in The Matrix or Bizzaroland.

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  5. Violette, I wanted to answer some of the questions you brought up and why it is unlikely that an individual farmer would take any kind of action.

    Most of these farms carry a mortgage. The barns are financed or the new upgrades are financed. If these growers make any kind of waves, they will be subject to retaliation by the integrators which means they may not be able to pay their mortgage. They might lose not only the chicken barns but their homes and other farm land put up as collateral on the loans. Retaliation is a common reaction by these companies and there is no real remedy under the law. While they may win the right for others, the integrator will retaliate against litigants who claim they are not independent contractors.

    In addition to this, most know that the courts are stacked against them. The meat packers have high ranking members of the political parties on their payroll. For instance, Debbie Stabenow, Dem. Senator who chairs the Agriculture Committee in the Senate, has been heavily influenced by the meat packers in reducing the federal protections these farmers had under the Packers and Stockyards Act. Retaliation is legal, according to the federal courts. The ranking member for republicans is another Senator known to be paid off by meat packers— Senator Pat Roberts. Stabenow by the pork side of the meat packers and Roberts by the beef side. Roberts is also on the Judiciary Committee which wields enormous power over the judges and interpretation of the existing laws. Senator Arlen Specter, another high ranking member of the Judiciary Committee, got chicken magnate Frank Perdue off of drunk driving charges when Frank killed one person and wounded seriously another and has allowed all types of legal loopholes when cases come to court. Bill Clinton was seriously in with Tyson, the largest meat packer.

    The meat packers have many, many, former politicians on their payroll. The most recent example of this came with the new GIPSA rules where the meat packers threw all kinds of money at Congress so the Packers and Stockyards Act protections would not be enforced and federal judges could continually make excuses to keep cases out of court despite what the laws say. Money does talk when it comes to politicians.

    These family farmers have a lot to lose— not just a job but their homes and their assets whether they win or lose in court. That is why you will not hear many current growers talking about any of these issues. They know the deck is stacked against them.

    Tom

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  6. Violette said:

    I totally understand the farmers are (I’m not sure I call these types of farmers “family” farmers) fearful of being blacklisted.
    As far as the politicians I know exactly where they all are coming from. I had 2 friends who interned on Capital Hill back in the 80’s. All the deals are done in the offices and the bickering back and forth on the floor is for show. For instance, the Speaker will go around and figure out who should vote which way- Example a Dem elected in a more conservative district will be advised to vote against something the majority of his/her constituency isn’t in favor of, if the Speaker knows the legislation is going to pass without the yea vote of that congress person. So the moral of this story is-Beware, what ever a politican is telling you is most likely just lip service——-a.k.a BS.

    The question is-How do you break up this mess? I imagine this lawsuit is a start but so far it’s only been a local story and words like “environmental” and (especially) “Waterkeepers” are taboo around here. After reading your comments Tom, I haven’t much faith in the justice system though.

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