You work for a private corporation with a government contract. Your paycheck comes from the private company, but you work at a federal building, side-by-side with government employees. You even report to a federal supervisor. But as a government contractor, do you have the same rights as a federal employee when it comes to workplace discrimination, harassment, and retaliation? When it comes to independent contractor rights versus that of an employee, the answer isn’t so simple.
Most federal, state, and local anti-discrimination laws apply to independent contractors (depending on certain limits, like the number of employees, “independent contractor” status, etc.). So, if you’re a contractor working in DC, you can go to the EEOC, or the DC Office of Human Rights, and file a discrimination complaint against your private employer.
In addition, you may also be able to take advantage of the federal administrative EEO process. If you can prove that the federal government was your joint employer, you can file a discrimination or retaliation complaint against the federal government, as well.
How to tell if the federal government was your joint employer
To bring an employment claim against the federal government, you must show that the government was your “joint employer.” A joint employment situation exists when two or more employers exercise sufficient control over a worker. The answers to the following questions determine whether a federal agency is a joint employer:
- Does the government have the right to control when, where, and how you perform your job?
- Does the government have the right to assign you projects?
- Do you work at a government building or work site?
- Do you use the government’s tools, materials, and equipment to do your job?
- How long have you worked for the government agency?
- Does the government control your schedule?
- Does the government have the power to terminate your employment?
None of these factors is decisive. In fact, you may be able to prove that the federal government is a joint employer, even if you answered “No” to a majority of the questions above.
How hard is it to show the government is a joint employer?
The agency doesn’t have to completely control your workplace activities. Partial control may be enough to establish a joint employment relationship. Additionally, courts consider whether the agency is able to control the conditions of employment, not whether the agency actually exercises that right.
What about the terms of the government contract?
Many government contracts will specifically state that the federal government is not a joint employer. However, courts will look at the actual employment relationship, rather than contract language.
Are you a federal contractor facing discrimination or harassment?
If you’re a contractor or consultant who is facing discrimination by a federal agency, we can help. Alan Lescht and Associates represents contractors in discrimination and retaliation claims against the federal government.
For example, we successfully represented a staffing firm employee who worked at the Central Intelligence Agency (CIA). The CIA initially dismissed our client’s discrimination complaint because he worked for a contractor, not the federal government. However, the EEOC reversed the CIA’s decision and found that the CIA was liable for discrimination and retaliation as the client’s joint employer.
Contact us today if you have been subjected to discrimination or retaliation. During a consultation, our attorneys will evaluate your case and determine whether you can bring a claim against the federal government as a joint employer. We represent federal employees and contractors around the world, and private-sector and state and local government employees in DC, Maryland, and northern Virginia.
This post was originally published on January 26, 2018, and was updated on January 20, 2020.