For Government Contract Employees, Your Employer is Not Just Who Signs the Paycheck

You were interviewed and hired by a private firm, but sent to work at a government agency as a government contractor. You report your hours, receive healthcare benefits, and receive your paycheck from the firm, but your office is at the government agency. The growth and popularity of government contract workers at various local and federal government agencies may lead to confusion about who is technically the “employer.” When government contract employees have an unlawful termination claim, whether due to discrimination or harassment, whistleblower, retaliation, or overtime and other wage claims, both the private firm and the government agency could be on the hook as joint employers. Thus, a government contractor should pursue his or her claims against both entities if either the private sector employer or government agency mistreated the employee and violated state or federal law.

Courts determine whether a contract worker is deemed a government employee for purposes of an employment discrimination lawsuit by looking at whether the employer “has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer.” Lopez v. Johnson, 333 F.3d 959, 963 (9th Cir. 2003) (citing Redd v. Summers, 232 F.3d 933 (D.C. Cir. 2000) (internal citations omitted)); Strolberg v. Akal Sec. Co., 2005 WL 5629026, at *6 (D. Idaho Jan. 19, 2005). The courts look at “the extent of the employer’s right to control the means and manner of the worker’s performance [as] a primary factor,” as well as other factors including whether the employer furnished the employee’s equipment and place of work, the length of time the employee worked, and whether the work was an integral part of the employer’s business. Lopez at 962-63 (citing Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 (9th Cir. 1980) and Mitchell v. Frank R. Howard Mem’l Hosp., 853 F.2d 762, 766 (9th Cir. 1988)).

In Strolberg v. Akal Sec. Co., the court found employees of Akal Security Co., a private security company, to also be government employees of the United States Marshal’s Service (“USMS”) for purposes of a claim under the Rehabilitation Act – even though the USMS had limited control over the terms and conditions of the employees’ work. Strolberg at *1. Akal Security was responsible for managing court security officers’ (“CSO”) work hours and assignments, payment of salaries, and scheduling of vacation, discipline, and performance of services. Id. at 7. Also, the USMS did not normally direct CSOs’ activities nor have intent to enter into an employment relationship. Id. at *8. Yet, the court found the USMS to be the CSOs’ joint employer. Id. Examples indicating that the USMS was a joint employer included the USMS providing training; furnishing radio, weapons, handcuffs, and identification; determining routes, schedules, and operating procedures for CSO patrols and stations; and providing the premises where the CSOs worked. Id. at *7-8. The USMS could not directly fire CSOs, but could evaluate CSOs and direct CSOs in the event of emergencies. Id. at *8. The Strolberg case shows that the employer need not control everything about the contract worker’s employment, but just some significant aspect of it.

Be cautioned: the government may well try to tell you that you are not its employee, and that you have no right to file claims against it. Do not believe it. You should make sure that you register a complaint with the proper government authorities very quickly after you suffer an adverse employment action, because the government tends to have very short deadlines for filing complaints. Often, if you do not file against the government quickly, you will lose the right to hold the government accountable.

In one example, Bryan Schwartz Law’s client Garnett Gebhardt sought to hold both the U.S. Department of Energy (“DOE”) and Northrop Grumman liable as joint employers for her claims of harassment and discrimination. Gebhardt v. Chu, 2010 WL 5211459, at *1 (N.D. Cal. Dec. 16, 2010). While contracting firm Northrop Grumman signed Ms. Gebhardt’s paychecks and provided employee benefits, Ms. Gebhardt worked in DOE facilities, used a DOE email address, and worked directly under a Senior Counterintelligence Officer and federal employee. Id. With limited exceptions, Equal Employment Opportunity Commission (“EEOC”) regulations require that federal employees (or federal contract employees) consult with the proper Equal Employment Opportunity (“EEO”) counselor at the agency within 45 days of the matter alleged to be discriminatory in order to file a civil suit. Id. at *6.

In the Gebhardt case, although (before hiring Bryan Schwartz Law) Ms. Gebhardt complained to DOE officials and attempted multiple times to contact a DOE Human Relations Specialist in order to properly file an EEO complaint, the DOE took the position that Ms. Gebhardt never properly filed an administrative complaint against it. Id. at *3-4. The DOE argued that the DOE Human Resources Specialist was not an “EEO” official that was logically connected with the EEO process. Id.at *9. The DOE also argued that if there was an EEO complaint filed by Ms. Gebhardt, she had directed it to Northrop Grumman and not the DOE. Id. at 10. However, Bryan Schwartz Law successfully convinced the court that it should reject the DOE’s arguments that Ms. Gebhardt’s complaints were untimely (under the legal principle of equitable tolling) because Ms. Gebhardt and her counsel were told by the DOE that her complaint was being handled, even though it was not. Id. at *13.

Though Bryan Schwartz Law ultimately succeeded in saving her claims against the DOE, the Gebhardt case shows how important it is to be quick and persistent in pursuing your employment claims with the appropriate channels at both your government agency and contracting firm. The agency or firm may mislead you into filing a complaint with one employer only, or with an individual or office not charged with handling EEO complaints.

If you are unsure who your “employer” is or where to file a complaint, you could very well have joint employers and should pursue action against both. In particular, if you are a government contractor and you have a discrimination, whistleblower, or wage and hour claim arising out of either your contracting firm or government agency, please contact Bryan Schwartz Law.