[Virginia] Leaving an independent contractor agreement without sufficient notice, but with unresolved grievances

Tl;dr: I agree to sign on as an hourly independent contractor at a lower-than-my-usual rate because I am assured of steady, consistent hours every week (20-30+). I am also expected to respond to emergency incidents on nights/weekends, something I didn't mind with the aforementioned assurance of steady work. I later realize the hours are far less than what I expected (average out to 10 an hour) and fluctuate wildly (some weeks are as low as 2-3 hours). Contract makes no mention of "consistent hours" or SLA for emergency issues. After bringing concerns and a potential solution to relevant parties, they refused after a month of inaction. Frustrated, I give 6 days notice (what I believe to be more than adequate time to get affairs in order, considering historical work volume) and complete a task list of outstanding work, but later realize the contract states that 14 days notice are required. Now, I'm worried they will take action against me for breach of contract.

Long version:

Involved parties: Me (independent contractor), local government (Faketown, Virginia), government contracting company (Phony, Inc.).

While I put [Virginia] in the title, if it's worth noting, my place of residence is in DC. The contract that governs the relationship detailed below says that Virginia law is to be used, however.

I am a freelance programmer. Work can fluctuate wildly, so I am always on the lookout for steady, part-time, contract employment as a "safety net." This usually comes in the form of hourly contracting arrangements.

I hear that the IT manager from a nearby city government, Faketown, is seeking someone to maintain their network of websites. These websites are used by citizens to get information on how to pay parking tickets, complain about stuff, and other local government-y things.

I interview for the job. The IT manager from Faketown says they want to hire me ASAP. This is a position that had been vacant for several months and they were desperate to get someone on board because the websites have serious maintenance issues.

Recognizing that I would be almost solely responsible for keeping the network of websites in good working order, and would be expected to respond off-hours in the event of emergencies (defacements, crashed servers, etc.), I asked for an assurance that there would be a steady amount of work available (20-30 hours) week-to-week before I agreed to a hourly rate.

IT manager said (via email), yes, because I was replacing a full-time person who had worked 40 hours a week for several years, that it would be no problem for 20-30 hours per week be available any given week. Because of this assurance of steady work (something I desperately wanted), I agree to an hourly rate lower than what I usually charge, and did not stipulate any sort of retainer-style agreement in order to seal the deal.

However, Faketown cannot hire me directly due to some bureaucratic thing regarding IT services. Instead, I have to pick a pre-approved contracting company to subcontract for. A little off-put that I couldn't work for Faketown directly, I pick one (Phony, Inc.) and sign an Independent Contractor Services Agreement for 1099 contractors with them.

The agreement basically said I was authorized to work at the discounted hourly rate I agreed to with Faketown's IT manager for up to 40 hours per week, although there is no mention of the expected hours I discussed with IT manager from Faketown, nor is there any explicit mention of any SLA in regards to emergency situations. These are things that were mutually expected, as per my conversations with Faketown, however.

The first couple weeks were fine. They allowed me to take billable time in learning their proprietary systems, and I performed a sorely needed software updates to bring their network of websites up to date.

After that, the work volume dropped dramatically. The expected hours (20-30) actually average out to about 10 hours per week. And that was the average. Some weeks were as low as two hours. Emergency situations that I responded to after hours occurred, but were infrequent. My most recent paycheck (two weeks worth) from Phony, Inc. was only a few hundred bucks.

Considering the lower-than-expected hours, and the aforementioned round-the-clock responsibility to respond to potential emergency incidents off-hours, I felt like I was being shafted after the big software update was complete.

I decided a retainer agreement would make more sense than a straight hourly arrangement. I would ask for double the hourly rate and a "retainer" of 10 hours per week (meaning if 10 hours of work were not available that week, 10 hours at the new rate would still be owed), and a cap of 20 hours per week (down from 40, and only with approval if 10 hours were already genuinely used up that week, to prevent abuse from me).

I brought these concerns to Faketown's IT manager (who I might add, is very nice, and who I don't believe willfully misrepresented the expected amount of hours…I just work more quickly than the last person) who agreed with me. However, Faketown's IT manager had no ability to change the rate and other parameters of the agreement, but would discuss with Phony, Inc., who did.

A month passed. Nothing changed. No more than typical hours (~10 per week, but still wildly fluctuating). No indication that my request for a retainer agreement and higher rate was forthcoming from Phony, Inc.

Growing frustrated, I email the project manager at Phony, Inc. asking what the status was. The project manager responded quickly saying something along the lines of "I meant to get back to you sooner, but been busy. I'll discuss with my colleagues about increasing the rate but I can tell you right now that you can't have a 100% increase in rate."

Overcome with emotion and frustration at Phony Inc.'s project manager for:

  • Dodging request about retainer agreement
  • Telling me that my desired rate was not happening
  • Taking over a month to tell me all of this

…I emailed back project manager at Phony, Inc. informing him of my intention to quit Faketown, and my intention to inform stakeholders at Faketown of that decision shortly while offering to tie up any loose ends, which I do a few minutes after that. Since I work with Faketown employees directly, and my interaction with Phony Inc. rarely goes beyond submitting them a weekly timesheet, I thought it would be appropriate to let Faketown know myself.

Project manager emails back kinda pissed off because Phony, Inc. is supposed to inform Faketown of my resignation, not me directly. He then leaves me a voicemail asking him to call back to help "correct" the situation, even though he is on vacation at the time. I did not call back (again, too frustrated / emotional to have a rational conversation).

Faketown representatives email me back later that day, informing me they are saddened by the news of my departure, asking for an exact last day, and provide a list of minor loose ends they would like me to tie up. I respond stating my last day is four business days away (six total days, including weekend).

Additionally, I complete the list of loose ends they provided. They seemed happy with the results.

Reviewing the Independent Contractor Services Agreement, I noticed there is a clause that states 14 days prior written notice needs to be provided to terminate the agreement.

Today is day 4 of the 6 days notice I originally provided.

  • I know anyone can sue anyone for anything, but if they successfully sued me for breach of contract (I gave 6 days notice, not 14 as required by agreement) what could the damages be? Like I said, I completed a list of tasks Faketown provided upon learning of my departure.

  • Could the contract be considered void because I signed it under false pretenses? Had I known the average hours would wildly fluctuate (some weeks are as low as two hours), would average out to be ~10 per week, and not the 20-30 I was expecting, I would have asked for a higher hourly rate and retainer agreement from the start. Again, I have an email from Faketown's IT manager assuring me of the 20-30+ hour/week expectations, although this is not outlined in the Independent Contractor Services Agreement with Phony, Inc.

  • Could I argue that Phony, Inc. shouldn't have ever been an independent contractor if Faketown expects me to respond to emergency issues on nights and weekends? Would this be "behavioral control"? Again, no SLA was mentioned in the contract with Phony, Inc. and I did not contract directly with Faketown. Just a mutually understood expectation.

  • If it might be relevant, I contemporaneously turned down a salaried/full-time job with another entity in favor of this one because this one allowed remote work and offered more flexibility. Faketown was aware of this. The reason why I mention this, is I wonder if Phony, Inc. tries to sue me for "lost revenue" …that I could countersue for the "lost revenue" of turning down a full-time salaried/position in favor of one they offered under false pretenses?

  • Being on-call 24/7, potentially for free (if no incidents arise and no other work arises during the business week), just seems wrong to me. Although I don't know enough about the law to articulate it in legal terms. It would be like hiring a security guard to be always "at the ready," but only paying them if/when a security incident occurred that they responded to. Is there some term for this so I can research further?

  • If it might be relevant, I am being seriously considered for two full-time/salaried jobs at other entities. Part of my seemingly abrupt/brash decision was to clear the way to start a new "real" job ASAP where I could give it my undivided attention and not have to worry about dealing with some emergency Faketown situation.

  • While I can't afford for Faketown to interfere with a new full-time job because Faketown is not paying me nearly enough to make a living (again, my most recent paycheck was only a few hundred bucks), I can't afford a lawsuit more.

  • Am I being a total idiot, and should I just extend my notice 8 more days (to total 14, as required by contract)? I'm not on the best terms with contractor because of this situation, but I believe they would be receptive to this. I think I could probably just stick it out for 8 more days, even in conjunction with a potential full-time job.

  • While I'm not interested in initiating legal action against Phony, Inc…if they were to initiate against me, what would be my chances of 1) mounting a credible defense, and 2) mounting a credible counter-suit for something (maybe abuse of process, "I'm an employee, not an independent contractor" or tortious interference)?

Sorry if I was rambly but I wanted to make sure I got any relevant detail in. Any thoughts would be much appreciated.

Thank you!


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