Federal Legal Corner: Discrimination Claim by Contract Employee

On March 8, 2014, the EEOC’s Office of Federal Operations (OFO) issued its decision in Complainant v. Dept. of the Army, EEOC Appeal No. 0120131103.OFO found that the complainant was able to press a discrimination complaint against the Department of the Army through the federal-sector EEO process.

The complainant was employed directly by a contracting company at an agency facility in Minnesota. The complainant’s contract was terminated in September 2012 after almost three years working on this contract. The complainant filed a formal EEO complaint alleging that the agency fired her based on her national origin (Italian).The agency’s EEO office dismissed the complaint for failure to state a claim, citing the fact that the complainant was not an agency employee. The complainant appealed this dismissal to OFO.

On appeal, OFO reversed the agency’s dismissal of this complaint.OFO noted that the federal-sector EEO process is not limited to direct civil service employees of the agency, and that persons (such as contract employees) who are under enough supervision by the agency can also be deemed a “joint employer” relationship of the complainant, and thus able to sue the agency as their ‘employer’ through the federal-sector EEO process.The test used by OFO is highly fact-specific, applying the 15 non-exclusive factors identified in Ma v. Dept. of Health and Human Services, EEOC Appeal Nos. 01962389, 01962390 (May 29, 1998):

1. The employer has the right to control when, where, and how the worker performs the job.

2. The work does not require a high level of skill or expertise.

3. The employer furnishes the tools, materials, and equipment.

4. The work is performed on the employer’s premises.

5. There is a continuing relationship between the worker and the employer.

6. The employer has the right to assign additional projects to the worker.

7. The employer sets the hours of work and the duration of the job.

8. The worker is paid by the hour, week, or month rather than the agreed cost of performing a particular job.

9. The worker does not hire and pay assistants.

10. The work performed by the worker is part of the regular business of the employer;

11. The worker is not engaged in his/her own distinct occupation or business.

12. The employer provides the worker with benefits such as insurance, leave, or workers’ compensation.

13. The worker is considered an employee of the employer for tax purposes (i.e., the employer withholds federal, state, and Social Security taxes).

14. The employer can discharge the worker.

15. The worker and the employer believe that they are creating an employer-employee relationship.

Applying these factors to the complainant’s case, OFO found that eight of the Ma factors indicated that the agency was supervising the complainant, had control over the decision to hire her, directed her work, controlling her work environment within agency-owned facilities using agency equipment, co-approved her leave requests and exercised de facto control over her removal.OFO also noted that the complainant’s contract had continued for almost three years, that she did not hire or pay assistants and was not engaged in her own business.

In contrast, OFO found only three Ma factors indicated against the complainant being found an agency employee, with two factors being inconclusive.As a result, OFO found that the complainant was supervised enough by the agency for her to file an employment discrimination complaint against the agency, and so should have access to the federal-sector EEO process.Accordingly, OFO reversed the dismissal of the complainant’s EEO complaint and remanded it to the agency for investigation.

* 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.passmanandkaplan.com. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.