Can You Be Terminated for Speaking Out Against an Employer?

speaking out against an employerIn the chicken industry, farmers that are categorized as independent contractors have to provide their own equipment, and are subject to practices most people would consider unfair by massive food corporations. For example, in 2008, a man rallied local farmers to file complaints against Tyson foods with the United States Department of Agriculture and their Congress members, siting injustices including inaccurate chicken weigh-ins that he was not allowed to see. Tyson allegedly retaliated by giving the farmer sick chicks and did not renew his contract. The farmer took his case to court.

Independent contractors are allowed to speak out against employers, but they are not covered from employer retaliation under federal laws, unless they have been misclassified.

Should You Be Categorized as an Independent Contractor?

In the case with Tyson, the employee firing case was dismissed because the issue was found not to affect competition across the entire industry. There are specific rulings in these cases that can differ state to state and case by case. The farmer made the argument that since the farmers provide their own equipment, they should not be categorized as independent contractors. Employee misclassification is a legitimate claim you can make if being wrongfully terminated for whistleblowing, being mistreated, or withheld from benefits.

Guidelines for Employee Misclassification

  • Level of control: How much control does the company have over the worker or their job performance? How much training did they provide? Are contractors given work supplies or benefits like time off and pension plans? The more a company controls and invests in an employee, the more likely they should not be an independent contractor.
  • Level of sustainability: The US Department of Labor has an “economic reality test” it uses to determine how an employee should be categorized. Factors in the test include: How important the employee is to the business, how long the employee is expected to work there, how much investment the company placed into the employee, and the ability for the contractor to succeed within the terms of the contract.

Los Angeles employment attorneys at the law offices of Kesluk, Silverstein & Jacob have the ability to help you figure out if you were wrongly classified using years of case experience. 



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