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Processing Contingent Employee EEO Complaints

Processing Contingent Employee EEO Complaints. James N. Szymalak EEO & Civil Rights Legal Advisor. Current Guidance. AR 690-600, Chapter 3-10 [9 FEB 2004]

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Processing Contingent Employee EEO Complaints

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  1. Processing Contingent Employee EEO Complaints James N. Szymalak EEO & Civil Rights Legal Advisor

  2. Current Guidance • AR 690-600, Chapter 3-10 [9 FEB 2004] • EEOC Notice 915.002 [DEC 97]Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms • Part 2-III, EEOC Threshold Issues

  3. Who is an employee? • Must have status as an employee, or applicant for employment, to file a formal complaint • No Title VII language strictly defining “employee” • 42 U.S.C. § 2000e(f) defines “employee” as “an individual employed by an employer”

  4. Analysis • First, determine whether worker is an independent contractor or an employee. • If the worker is an employee, who is the employer? • If both Army and contractor are employers, joint and several liability. • What effect upon processing and resolution?

  5. Applicable Case Law • Apply common law definition of “employee” • Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318 (1992) • Clackamas Gastroenterology Assocs. v. Wells, 123 S.Ct. 1673 (2003) • Wenli Ma v. HHS, EEOC Appeal No. 01962390 (May 29, 1998) • Economic Realities Test (Spirides) no longer applicable

  6. Common Law Standard • Consult EEOC Threshold Issues Handout. • “no shorthand formula or magic phrase that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.”NLRB v. United Ins. Co. of America, 390 U.S. 254 (1968)

  7. Park v. Dep’t of the ArmyEEOC Appeal No. 01A10015 [September 27, 2001] • Contractor: • Provided wages, benefits, leave • Rated and reassigned employee • Army: • Assigned work • Provided input to contractor for appraisal • Made recommendations as to leave • Suggested reassignment

  8. But see . . . • Emeterio v. Dep’t of Army, EEOC Appeal No. 01A23938 (April 9, 2003) • Contractor paid salary, provided insurance, retirement plan, and paid leave. • Army provided office, set schedule, and determined clients to be seen. • Hassan-Zedeh v. Dep’t of State, EEOC Appeal No. 01A34491 (December 9, 2003) • “. . . complainant performed his contract duties at the agency’s facility, used the agency’s supplies and equipment, and that some of his assignments were controlled by agency officials.”

  9. EEOC Decision History • 144 EEOC decisions citing Wenli Ma • 42 decisions in FY04 - FY05 • 24 Affirmations of agency dismissals • 17 Remands for more information • 13 specifically requested copy of employment contract • 1 Reversal • Cannot cure remand order with RFR • Gaines v. Dep’t of the Army, EEOC Request No. 05A50112 (February 9, 2005)

  10. Selected Circuit CourtDecisions Applying Darden Stds. • Redd v. Summers, 232 F.3d 933 (D.C. Cir. 2000) • Eisenberg v. Adv. Relocation, 237 F.3d 111 (2nd Cir. 2000) • Graves v. Lowery, 117 F.3d 723 (3rd Cir. 1997) • Eren v. Commissioner of Revenue, 180 F.3d 594 (4th Cir. 1999) • Chadha v. Hardin Memorial Hospital, 202 F.3d 267 (6th Cir. 2000) • Hojnacki v. Addus Healthcare, 285 F.3d 544 (7th Cir. 2002) • Schweiger v. Farm Bureau Ins. Co., 207 F.3d 480 (8th Cir. 2000) • Lopez v. Johnson, 333 F.3d 959 (9th Cir. 2003) • Sizova v. Nat’l Inst. of Stds. and Tech., 282 F.3d 1320 (10th Cir. 2002) • Virgo v. Riviera Beach Assocs., 30 F.3d 1350 (11th Cir. 1994)

  11. Processing Complaints • Does the employee wish to file against the contractor, the Army, or both? • If Army, assign a counselor and obtain working relationship information. • If the employees desires to file formal, labor counselor must render fact based analysis and legal opinion as to whether worker is a de facto employee.

  12. Processing Continued • If not de facto employee: dismiss complaint and give appeal rights to OFO. • Worker status is a jurisdictional issue and may be raised at any stage. • If de facto employee: process complaint. • Labor counselor should work with contracts attorney regarding liability and possible action against contractor.

  13. Miscellaneous • ALWAYS issue a “Notice of Right to File a Formal Complaint Of Discrimination.” • Still apply other 1614.107 dismissal bases when they apply. • A federal employee harassed by a contractor employee is always entitled to Title VII complaint processing.

  14. Miscellaneous • EEO Officer will serve as POC to the EEOC regarding private charges. • However, NO interviews or document requests will be honored without prior concurrence of the labor counselor. • Avoid improper contact with contractor [use COR]

  15. Unresolved Issues • Do we offer ADR to contractor employees? • Do we provide POSH training and CO2 sessions to contractor employees? • Can we force contractors to participate in the EEO administrative process? • What “color of money” for findings and settlement?

  16. Conclusion • Adequately train EEO counselors to identify and correctly counsel contractor complaints. • Ensure that all dismissals have a thorough analysis of the facts • Send questions to: James.Szymalak@hqda.army.mil

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