Many federal managers are responsible for managing a workforce that consists of both federal employees and contractors. When this happens, federal managers typically have questions about just how much management authority they have over their contracted employees.
When issues arise in the workplace, it can cause concern about the federal manager’s jurisdiction in managing the complaint — especially when it comes to employment discrimination complaints lodged by a contracted employee against a member of the federal workforce.
The Equal Employment Opportunity (EEO) rules and regulations applicable to the federal workforce do not usually transfer to contracted employees. The Equal Employment Opportunity Commission (EEOC) typically has no jurisdiction over complaints of discrimination filed by contractors. Instead, contracted employees who are filing a complaint turn to the Office of Federal Contract Compliance Programs (OFCCP), which administers and enforces equal employment opportunity laws for private-sector employees who enter contractor agreements with the federal government.
Contracted employees who feel their company has discriminated against them can file a complaint with OFCCP. OFCCP has the authority to evaluate and investigate a contractor’s personnel policies and procedures. This can be done through various methods, including conference, counseling and mediation. Ultimately, OFCCP has the deciding authority in whether to terminate a contractor’s agreement with the government if the private company continues to fail to comply with the EEO provisions of the contract. OFCCP is purely private-sector oriented and has no authority to investigate unfair employment practices directly involving federal employees or agencies.
This process may make it seem as though federal managers are not accountable for complaints lodged against federal workers by contracted employees. This is hardly the case. If an agency or manager exerts too much control over a contracted employee, the contractor can be deemed an employee of the federal agency for purposes of accessing the federal EEO system and he or she could be granted all appeal rights before the EEOC and Merit Systems Protection Board.
The EEOC has final authority in determining whether a federal agency should be held accountable as an employer. Factors used to determine who qualifies as a federal employee include:
*The extent to which the agency controls and manages the nature of the work performed by the employee.
*The level of supervision provided by the agency in the contractor’s work.
*The skill required in the particular occupation.
*Whether the agency furnishes the equipment used and the place of work.
*The length of time the individual has worked for the contractor versus the agency.
EEOC places the burden on the agency to show a contractor is not entitled to access its EEO process. EEOC has used the Common Law of Agency Test in a number of recent decisions to determine whether an individual is an employee of the agency.
In some cases, EEOC may determine that an individual is actually in a joint employment relationship and is working for both an agency and his private employer.
Managers should exercise caution when discussing performance or disciplining contracted employees. Remember the general rule that the contractor has authority over the employee, not you. One of the best tactics to resolve the issue while protecting the agency’s liability is to approach the contractor manager of the contracted employee instead of going straight to the employee.
When questions arise regarding just whom the employee is working for, I recommend referring to the original contract agreement between your agency and the contracted firm. It likely holds some key language or a specific provision that will assist in determining who is responsible for the employee.
— Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to email@example.com.