MANAGING CONTRACT WORKERS IN THE FEDERAL GOVERNMENT

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MANAGING CONTRACT WORKERS IN THE FEDERAL
GOVERNMENT

• Discrimination against contract employees

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Federal Agencies shall not discriminate!

• Federal Agencies shall not discriminate, but
• Only applicants for federal employment and
  employees of federal agencies may pursue an EEO
  claim against the discriminating agency

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By Enforcement Guidance issued on December 3,
1997, EEO laws applied to contingent workers.

• Enforcement Guidance 915.002 was issued to apply
  anti-discrimination statutes to temporary,
  contract and other contingent employees
• Contingent workers are those who are hired and
  paid by a staffing firm whose working conditions
  are controlled in whole or in in part by the
  clients to whom they are assigned.

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Why was coverage extended to contingent workers?

• Rapid increase in the contingent work force
• From 1991 to 1997, the contingent workforce
  doubled to 2.3 million according to National
  Association of Temporary and Staffing Services
• Contractor and Staffing firms assume they are not
  responsible for discrimination or harassment
• Contingent employees often have lower rates of
  insurance and pension coverage

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1997 Enforcement Guidance established liability
for contracting firms and respective federal
agencies.

• Qualifying Contractor is responsible for
  discriminatory acts against its employees
• Agencies are responsible for acts of
  discrimination made against contingent employees
  under agency control
• Both are jointly and severally liable

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29 C.F.R. 1614.107 dismissals are no longer a
sure thing.

• Expanded definition of employee.
• Contractors are now covered by anti-discrimination
  statutes.
• 29 C.F.R 1614.107 dismissals are no longer a
  sure thing.
• Contractors may now have standing to file a
  formal EEO complaint with the contracting agency

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How to determine if a contract worker is a
contingent worker

• DEFINITION
• Contingent workers are defined by the EEOC as
  workers who are outside an employers core
  work force, such as those whose jobs are
  structured to last only a limited period of
  time, are sporadic, or differ in any way from the
  norm of full-time, long-term employment.

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No one factor may indicate who can be considered
a contingent worker

• Who signs your paycheck?
• Who hired you?
• What does the contractor/agency agreement say?
• NO!

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Contingent Worker Determinations

• Does the contracting, staffing firm or agency
  have the right to control when, where and how the
  worker performs his job
• Does the work require a high level of skill or
  expertise
• Does the firm or agency, furnish the tools,
  materials and equipment for the worker
• Is the work performed on the premises of the firm
  or at the agency
• Is there a continuing relationship between the
  worker, the firm or the agency

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Contingent Worker Determinations continued

• Does the firm or agency have the right to assign
  additional projects
• Who sets the hours of work
• Is the worker paid by the hour, week, or month
  rather than for the agreed cost of performing a
  particular job
• Does the worker play a role in hiring and paying
  assistants
• Is the worked performed part of the regular
  business of the firm or the agency

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Contingent Worker Determinations continued

• The firm or agency conducts business
• Worker is not engaged in his or her own distinct
  occupation or business
• Contracting firm or agency provides the worker
  with benefits such as insurance, leave or
  workers compensation
• Worker is considered an employee of the firm or
  agency for tax purposes (i.e., withholding
  federal, state and Social Security taxes
• Who can discharge the worker
• What type of employment relationship do the
  parties believe they are creating?

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Interesting case cites for analysis

• Spirides v. Reinhardt, 613 F.2d 826 (D.C.Cir.
  1979)
• Ma v. Department of Health and Human Services,
  EEOC Appeal No. 0 1962390 (June 1, 1998)(citing
  Nationwide Mutual Insurance Co., et. al. v.
  Darden, 503 U.S. 318, 323-24 (1992)
• Shelton v. Health and Human Services, EEOC,
  Appeal No. 01970337 (August 31, 1998)
• Johnston v. Department of the Navy, EEOC Appeal
  No. 0120070673 (March 13, 2007)

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Crux of legal analysis comes from common law
definition of agency

• Independent contractor, or
• Employee

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IMPACT

• True temporary employees
• Will they file?
• For questions contact
• Donald A. King Alan B. Robinson
• Acting Director, EEO Compliance, Agency
  Management Representative
• Complaints Resolution and ADR USDA,
  Agricultural Research Service
• NASA Headquarters HRD, Employee Relations
  Branch
• 300 E Street, SW 5601 Sunnyside Avenue
• Washington, DC 20546 Beltsville, MD 20705-5102
• donald.a.king_at_nasa.gov alan.robinson_at_ars.usda.gov
  
• [phone]