Fedweek Legal

On February 12, an Equal Employment Opportunity Commission administrative judge determined that the complainant, who was working at USAID as a contractor, is covered by the same law and procedures prohibiting sexual harassment as federal employees and allowed her case to proceed to the discovery phase. (EEOC No. 100-A1-7648x, February 12, 2002, unpublished). In many cases, contractors to federal agencies are protected against discrimination by laws and procedures covering private sector employees. In ruling that the complainant was an “employee” of the agency for purposes of protection against sexual harassment, the administrative judge applied the standards issued in the EEOC’s ruling in Ma v. Dept. of Health & Human Services, EEOC Appeal No. 01962390 (1998).

In the Ma decision, the EEOC held that in determining whether a contractor can be considered a federal “employee” under the rules that govern discrimination against federal employees, the judge should consider certain factors (also known as the “common law agency” test): (1) the hiring party’s right to control the manner and means by which the product is accomplished; (2) the skill required; (3) the source of the instrumentalities and tools; (4) the location of the work; (5) the duration of the relationship between the parties; (6) whether the hiring party has the right to assign additional projects to the hired party; (7) the extent of the hired party’s discretion over when and how long to work; (8) the method of payment; (9) the hired party’s role in hiring and paying assistants; (10) whether the work is part of the regular business of the hiring party; (11) whether the hiring party is in business; (12) the provision of employee benefits; and (13) the tax treatment of the hired party. In finding that the complainant was an employee of the agency, the administrative judge ruled that: she physically worked at the agency; performed work that was part of the regular business of the agency; she was supervised by a federal employee, who issued her performance appraisals; she signed bi-weekly timesheets; her leave had to be approved by the federal employee supervisor; she attended agency staff meetings; and traveled on agency-related business.

The administrative judge’s decision is significant in a day and age when numerous federal agencies have blurred the line between the work performed by actual federal employees and by contractors. Although contractors with federal agencies usually are protected by federal anti-discrimination laws and procedures protecting private-sector employees, this case demonstrates that contractors for federal agencies can, in some circumstances, be covered by the same federal anti-discrimination laws and procedures that apply to federal employees.

** 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. **