A recent decision by a federal trial court in Washington D.C.

clarified whether contract employees working for the federal

government have standing to file disability discrimination

complaints under the Rehabilitation Act of 1972. In United

Government Security Officers of America v. U.S. Marshals

Service, No. 01-1484(GK) (D.D.C. Sep. 11, 2006), the district

court found that court security officers (“CSOs”) working

for a private contractor had standing to file EEO complaints

against the Marshals Service because the Marshals Service

acted as a “joint employer” to the CSOs. The judge concluded

that the private employer and the Marshals Service were

joint employers because they both shared decisions concerning

the “essential terms and conditions of employment.”

In their complaint, the CSOs alleged that the Marshals Service

violated the Rehabilitation Act when the Marshals Service

disqualified them from employment after they failed medical

fitness-for-duty standards in effect in 2001. In deciding

that the CSOs could proceed in their case against the

Marshals Service, the judge examined the level of control

the Marshals Service had over the terms and conditions

of the CSOs’ employment. The judge considered various

factors in comparing the level of control exercised by

the private employers and the Marshals Service.

First, the judge found that private employers conducted

initial screening of CSO candidates and forwarded

potentially eligible CSOs to the Marshals Service for a

more thorough background check. The private employers also

paid salaries, provided benefits, withheld taxes,

maintained time and attendance, and terminated CSOs at

their discretion. On the other hand, the Marshals Service

also exerted significant authority over CSOs. During the

selection stage, a representative from the Marshals Service

participated in screening panels to select prospective

CSOs. The Marshals Service specified CSO qualifications,

including the physical fitness and medical standards that

allegedly violated the Rehabilitation Act. After a CSO

was deemed eligible to work in federal courthouses, the

Marshals Service was also responsible for overseeing the

training program. Additionally, the Marshals Service

provided the CSOs with all their equipment (including

weapons, radios, and handcuffs), established the dress

code, determined 32 specific performance standards,

determined the CSOs’ duty posts, and administered an

oath to each CSO as a Special Deputy United States

Marshals.

The judge highlighted the control the Marshals Service

had over the daily supervision of the CSOs. The Marshals

Service controlled the time, place, and manner in which

the CSOs performed their duties and assigned CSOs

overtime. Most importantly, the judge found that the

Marshals Service could also remove CSOs from working

under the federal contract, which, in effect, meant the

end of a CSO’s employment with the private employer.

The judge also noted that when a particular government

contract was transferred from one private employer to

another, the employment status of CSOs working at the

courthouses did not change. Therefore, the most

consistent supervisory presence for the CSOs was the

Marshals Service.

Although the decision by the federal trial court did

not yet examine the merits of the CSOs’ claims, the

CSOs overcame a significant obstacle when the judge

determined that they had standing to bring their

Rehabilitation claims against the Marshals Service.

The courts and the EEOC will closely examine the

realities of the work environment and make a case-by-

case analysis of the employment relationship. The judge

warned that the courts will not “allow the government

to structure its contracting relations so that… it

can have its cake and eat it too by retaining significant

control over the employment relationship, while

disclaiming any liability that might arise out of that

relationship.”

With the increasing number of contractors working in

the federal sector, this decision reminds government

employers that they cannot sidestep federal employment

discrimination laws by merely labeling employees as “contractors.”

Therefore, depending on the work situation, federal

contract employees may have the right to invoke protection

under federal employee discrimination laws.

** This information is provided by the attorneys at Passman

& Kaplan, P.C., a law firm dedicated to the representation

of federal employees worldwide. For more information on

Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **

The attorneys at Passman & Kaplan, P.C, are the authors of

The Federal Employees Legal Survival Guide, Second Edition,

a comprehensive overview of federal employees’ legal rights.

To order your copy, go to http://www.fedweek.com/pub/index.php.