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Can I legally be fired for a PENDING FELONY CHARGE? Other Criminal Charges & Offenses

Discussion in 'Criminal Charges' started by Tiffany Volm, Jul 28, 2021.

  1. Tiffany Volm

    Tiffany Volm Law Topic Starter New Member

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    Jurisdiction:
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    I was working for Uber & also Shipt both jobs you work off of a app on your phone and as soon as they received a notification from Checkr the background website that I had a pending felony charge they both fired me is that legal in idaho (ada county)? Also i applied for Lyft but they didn't even give me a chance they just automatically denied my application is that also legal?
     
  2. Zigner

    Zigner Well-Known Member

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    You are an independent contractor. They don't have to do business with you.
     
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  3. justblue

    justblue Well-Known Member

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    Of course it's legal...and considering the type of work you were doing, it's also predictable.
     
  4. stealthy1

    stealthy1 Active Member

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    And likely wise from their PoV.
     
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  5. Tax Counsel

    Tax Counsel Well-Known Member

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    Those firms claim that their drivers are subcontractors, not employees. While there has been debate about that, and a few states have taken steps to ensure those drivers are classified as employees, right now in most states, including Idaho, the drivers are still treated as subcontractors. Subcontractors don't benefit from all the rights and protections that employees have. That's one of the major reasons those companies choose to treat you as a subcontractor. They can refuse to hire you or terminate your relationship with the company for pretty much any reason other than discrimination based on race, sex, color, national origin, religion, age (over 40), mental or physical disability under Idaho law. Federal law covers only race, color, religion, or national origin for places of public accommodation, and it's unclear whether these app based services fit a place of public accommodation. Since your terminations/refusal to be hired were not based on any of those criteria, they weren't illegal.

    If you were an employee you'd have a bit more protection. One of those is some protection against discrimination based on prior criminal records. Employers generally should not have a blanket policy of not hiring persons with criminal records regardless of what the record is, how it relates to the job, and how long ago it was. But when it comes to an employee who has a pending criminal charge, especially a felony, an employer is not prohibited from firing you or refusing to hire you because of it.

    So whether you are employee or subcontractor, you don't have any significant protection from being terminated or for a refusal to hire because of a pending criminal charge.
     
  6. welkin

    welkin Active Member

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    You are using the term subcontractor when they are treated as independent contractors. There is a difference. An independent contractor works for the employer. A subcontractor does not. They work for the independent contractor or another sub.

    And independent contractors are not afforded the protection from termination based on race, sex, color, national origin, religion, age (over 40), mental or physical disability under Idaho law. Nor are they protected under Federal law. They are not employees.

    An independent contractor works under a contract. That contract will usually have at least two modes of termination; termination without cause and termination with cause.
     
    Last edited: Jul 29, 2021
  7. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    Is there such protection in Idaho?
     
  8. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    Cite?
     
  9. Zigner

    Zigner Well-Known Member

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    Welkin is actually (partially) correct. Tax Counsel used the word "subcontractor" when the phrase "independent contractor" is what he should have used. Of course, Welkin then goes on to claim that "an independent contractor works for the employer", and that is incorrect. By definition, an independent contractor does not work for an "employer", rather, they contract with another party to perform work - there is no "employer".
     
  10. Tax Counsel

    Tax Counsel Well-Known Member

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    The Idaho Human Rights Commission (which enforces Idaho employment discrimination law) takes the position that use of criminal records by employers that are not substantially job related is a violation of the Idaho Fair Employment Practices Act. Similarly, the federal EEOC takes the view that employers who have blanket prohibitions on hiring anyone with a criminal record may be violating the Civil Rights Act of 1964, and sets out a policy that employers should ensure that the criminal records bears some relationship to the job the person is applying for. For example, it wouldn't logically make sense to bar a restaurant chef from a job over a tax evasion conviction. Nothing about that conviction would negatively impact the chef's ability to cook food nor does it indicate any potential risk for harm to the employer or the employer's customers.
     
  11. Tax Counsel

    Tax Counsel Well-Known Member

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    I think that the drivers for these firms may be appropriately considered subcontractors. The person hiring them to drive does not hire them directly; they contract with Lyft, Uber, etc and then Lyft and Uber subcontract the work out to the drivers. But certainly the drivers are also independent contractors, and that term would have been perfectly appropriate too. Whether subcontractor or independent contractor, the law in this regard is the same.

    Independent contractors are not employees, so you are correct that the laws regarding employer discrimination against employees would not apply. However, in some states other laws may protect an independent contractor from race or other discrimination. For example, in CA the Unruh Civil Rights Act has apparently been successfully used for that purpose.
     
  12. Zigner

    Zigner Well-Known Member

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    That's a fair enough position that actually further illustrates that Welkin was, well let's say misguided in his assertion that you were incorrect. One can be an independent contractor and a subcontractor for the same job. They are certainly not mutually exclusive.
     
  13. welkin

    welkin Active Member

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    I shouldn't have used the word employer. I should have said the person who hires (contracts with) the contractor. But that is a bit of semantics..
     
  14. welkin

    welkin Active Member

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    In all the cases that I have read, not once have I seen the term subcontractor to describe the driver. The driver is always described as an independent contractor.
     
  15. Zigner

    Zigner Well-Known Member

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    There is no dispute (in this conversation) that the driver is a sub-contractor. While not the norm, it is true that the driver could also be considered to be a sub-contractor of Uber (Lyft, etc.) The two designations are not mutually exclusive.
     
  16. Zigner

    Zigner Well-Known Member

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    It's not semantics at all. The driver is not an employee and the company is not the driver's employer.
     

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