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Federal contractors must navigate workplace mediation without roadmap

By Dana Hedgpeth
Washington Post Staff Writer
Sunday, October 24, 2010; 6:18 PM

As the U.S. government's use of contract workers rises, agencies ranging from the Defense Department to the Department of Homeland Security and the Department of Energy are finding they have to deal with more complex questions of defining a person's work status as a contractor versus a federal employee.

The issue is becoming increasingly important as to whether a federal agency or a contractor is responsible when disputes emerge over pay, workers compensation, harassment complaints, discrimination claims and other workplace issues. Contractors aren't entitled to the same grievance processes as federal employees and typically have to go through outside agencies such as the U.S. Equal Employment Opportunity Commission or get private lawyers and file lawsuits, whereas federal employees have a range of mediation services and appeals available to them.

In the last decade, the EEOC has ruled in 90 cases that a federal agency and a private contractor are "joint employers" of a person, meaning their case has to be processed as if they were a civil servant.

"You're absolutely seeing more of these types of cases," said Mindy Farber, a lawyer in Bethesda who has specialized in federal employment law for 30 years. "People work for the federal government, they sit in a government cubicle all day and get their orders from government supervisors. But it is a private contractor that signs their paycheck, so when it comes to who to sue if something goes wrong, it becomes unclear who is liable.

"It leaves a person in a no-man's land," she said. "You're ricocheted back and forth between the contractor and the agency."

In one case, Alanna Taylor of Baltimore worked as a project manager under a contract with the U.S. Army at a biomedical research facility in Maryland and was supervised daily by Army officials. When she filed a gender discrimination complaint, the Army's equal employment office ruled that she was a contractor and not entitled to the same grievance process as a federal employee, according to Taylor. Taylor said she has appealed her case to the EEOC.

"[The Department of the Army] played both sides of the fence," Taylor said. "When it was convenient for them or when they want to have a tight rein over you like when you want to take time off, then you're a federal employee. But when they needed to distance themselves from you, then all of a sudden you're a contractor."

Just defining who is a contractor isn't easy. The federal government has at least four definitions of who is a contractor, all established to cover various legal aspects of the federal bureaucracy and its work. With blurred lines between contractors and federal employees, it leaves workers in a murky zone. Lawyers for contractors and procurement experts say the policies and rules of how to deal with these situations where someone is paid by a contractor but works daily side-by-side with federal employees and takes orders from federal supervisors haven't caught up to the widespread use of contractors across the federal government.

"It muddies the waters," said Alan Chvotkin, executive vice president and counsel at the Professional Services Council, a national trade association of government contractors. The difference between contractors and federal employees "gives rise to questions of inconsistent - or in some cases contradictory - guidance about which policies and procedures apply to federal workers but not to contractors."

One case that involves the EEOC's ruling of a "joint employer" goes beyond the typical office cubicle in Washington's suburbs to a war zone. It involves a 35-year-old Northern Virginia man who worked as an intelligence analyst for CACI International of Arlington under a contract it had with the Central Intelligence Agency to do work in Afghanistan.

When contacted, the man, who was given an alias of Nicolas R. Brewster by the CIA because of his secretive work, didn't want to comment, citing an agreement he signed with the government to not talk about his work. The CIA also wouldn't comment on his case, saying it "doesn't as a rule comment on personnel matters." CACI did not respond to repeated requests for a comment. The following account is based on documents and filings with the CIA and the EEOC obtained by The Washington Post.

Brewster alleges that while in Afghanistan in the fall of 2009 he was sexually harassed by a female CIA supervisor. After he filed a complaint with the agency, it dismissed his complaint on the grounds that he was not a CIA employee but a contractor. That meant he didn't come under the same complaint process as a federal employee of the agency.

Brewster took his case to the EEOC, arguing that while he may technically have been a contractor on paper, he was, for all intents and purposes, working not only for CACI but also for the CIA. Before he went to Afghanistan, the CIA trained Brewster on how to avoid getting killed, what to do if he got kidnapped, how to shoot in self-defense, and how to use its classified databases and some of its most sophisticated equipment.

"Because the CIA controlled the manner and means of [Brewster's] employment, the CIA must be deemed [as his] joint employer," according to Brewster's filing to the EEOC.

The EEOC agreed and ruled recently in his favor, reversing the CIA's decision. It said the CIA "exercised sufficient control" over Brewster's position to qualify him as a joint employer.

The CIA, which has "a zero-tolerance policy on harassment," according to spokesperson Marie E. Harf, has until mid-January to conduct its investigation of his harassment claim.

Staff researcher Julie Tate contributed to this article.

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