Federal Contractors

I've heard many things over the years about the do's and don't's in a contractor/government work relationship, but I have never found anything in writing. Different sites seem to treat this different and even different codes within the site.
Are either allowed to teach a new job to the other? Are they allowed to be in the same meetings? Can they both be addressed in the same emails from management? etc etc

Can I ask how you know this for sure? Is it written somewhere?

SOME FURTHER NOTES REGARDING TRUE CONTRACTOR STATUS VERSUS MISCLASSIFIED "CONTRACTOR" STATUS



If you’re TRULY a contractor—rather than a misclassified contractor and effectively an employee in practice, even if not a “civil service” employee—then basically you work for yourself, you’re effectively in business for yourself (and not dependent primarily on a specific government “contractor” position for your livelihood), you work at a given agency for a brief duration only, your work and performance aren't controlled/supervised by federal agency staff, you supply the tools you utilize to complete your work, and the nature of the work you perform is distinct from that of the agency’s work (e.g., work at the FBI briefly to, say, fix an electrical system, to perform building renovations, etc). Regrettably, this isn’t based (at least not yet) on federal legislation/laws passed by Congress, but based on case law established by the courts—and the EEOC through guidance and EEOC appellate decisions on federal sector EEO cases. So these criteria determining who's an "employee" versus who's a "contractor" are still set forth by actual law, but don't have the clarity or quite the same force that legislation passed by Congress does..


Read on…


By contrast, if you work at, say for example, the NIH and you’re called a “contractor” but you perform substantively the same lab research on vaccines or the like as a civil service employee staff scientist alongside them, you report in part or entirely to a federal employee supervisor who controls in full or in part the manner of your work, you work there for a while (i.e., longer than six months), then you’re MISCLASSIFIED as a contractor and an employee in practice (even if not a tenured civil service employee). Read the NYTimes article in reference 1 below—as well as the linked letter Senators sent to Google in 2019 demanding that Google convert “temps” and “contractors” to permanent employees based on the nature of those contractors’ relationships with Google. If you work for a third-party staffing company but are based at an agency on a long-term basis and controlled even partially by federal agency staff, then you’re a “joint employee” of the staffing firm AND the federal agency and still misclassified, according to the criteria set forth by lawmakers per the letter sent to Google. Also see reference 2 below—TODAY’s Hill article on the State of Virginia cracking down on misclassification in the State—which ought to include all the federal agencies engaging in the same practices within the state.


Indeed, what the Senators accused Google of doing is EXACTLY what federal agencies do with misclassifying contractors on a FAR BIGGER scale. Because the federal government is, at least on paper—and is supposed to be in practice—the Nation’s “model employer,” Congress cannot legitimately demand that private employers crack down on contractor misclassification when the largest and “model” employer engages in far, far more misclassification (and in turn mistreatment) of workers.


Like with private employers lawmakers have expressed desire to crack down on, federal agencies likewise also deny a wide range of rights and protections to workers who are misclassified as "contractors"--even when those federal agencies control those "contractor" workers and their terms of "employment" in part or in whole.


IT'S *WAY* PAST TIME THAT MISCLASSIFIED "CONTRACTORS" WHO WORK AT FEDERAL AGENCIES GET TOGETHER AND COLLECTIVELY DEMAND THAT CONGRESS (AND EVEN STATE OF VIRGINIA) PUT THE BREAKS ON THE LARGEST US EMPLOYER (THE FEDERAL GOVERNMENT!) MISCLASSIFYING-- AND IN TURN MISTREATING-- "CONTRACTORS". It's past time ALL those who work at (supposed) "model employer" federal agencies compel those agencies and federal managers to actually start acting like a true "model employer".


IF YOU AND/OR OTHERS YOU KNOW ARE "CONTRACTORS" AT FEDERAL AGENCIES, YOU NEED TO START SPEAKING OUT ON TWITTER, CONTACTING JOURNALISTS (e.g. at GovExec, Washington Post), AND ALSO CONTACTING MEMBERS OF CONGRESS DIRECTLY—ESPECIALLY but not only: 1) SHERROD BROWN, 2) BERNIE SANDERS, 3) RICHARD DURBIN AND 4) CAROLYN MALONEY (those MOCs have been most active in authoring legislation and/or otherwise addressing the issue of contractor misclassification, and Maloney chairs House Oversight Committee) to demand that Congress start curtailing misclassification among employers by FIRST cutting down on the widespread and egregious misclassification and mistreatment of contractors in the Nation’s “model employer”.


And if you know folks (as I do) who’ve been mistreated by federal agency managers at agencies (e.g., harassment and/or retaliation) and then the agency tried to deny them access to the EEO process and/or remedies therefrom specifically on the basis of their "contractor" (misclassification) status, then those folks MUST share their stories with members of Congress—just like Google workers have per below.


See:
1. https://www.nytimes.com/...google-temp-workers.html
2. https://thehill.com/home...nvestigating-worker?rl=1

Edited by user Thursday, March 4, 2021 11:23:56 PM(UTC)  | Reason: Not specified

I'm fairly confident that the criteria I described above distinguishing misclassified "contractor" employees from true contractors is accurate if very general (feel free to have an employment attorney review if you wish to double check). The DOL page you referenced above refers to actual contractor entities/ businesses-- not the individuals also labeled "contractors" who are physically placed at federal agencies, often under the supervision of federal agency managers, and who are often "common law" employees based on the manner in which federal agency managers effectively control their employment, and livelihood.



For further guidance on whether an individual (not a business) is a true "contractor" versus someone who's misclassified as a contractor but is in effect an employee, you can also dig up the federal sector EEO case Ma vs. HHS (EEOC Appeal No. 019623290, June 1,1998) and read more about the criteria that render an individual "contractor" worker effectively an employee of the employer that controls them in practice. Indeed, the biggest factor that makes someone an "employee" in practice is the degree and manner to which they are "controlled" (e.g., supervised) by an employer (e.g., a federal agency manager).



Indeed, based on the criteria set forth in the Ma v. HHS EEOC case, the corresponding DC Circuit case (still good/controlling law) of Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir., 1979)-- and the letter Senators sent in 2019 to Google cited above-- a very high percent of "contractor" individuals placed at federal agencies (even if not all) are MISCLASSIFIED as contractors and are in effect employees of federal agencies who've been denied the rights of such status. It's PAST TIME that Congress basically codify in legislation the rulings in the aforementioned cases (among many, many other such rulings in court cases nationwide) before the 6-3 hard-right SCOTUS tries to reverse those appellate legal rulings and change the status of "contractors"...



To repeat what I stated earlier, ALL those who've been misclassified as a "contractor" and in turn mistreated at federal agencies should write to members of Congress, journalists, and go on Twitter (even if anonymously to prevent retaliation) to demand that the "Model Employer" federal government, the largest employer in the Country, start acting as a true model-- for the sake of federal workers and in turn ALL workers.

@Exit7A, I'm afraid you're not correct, and you haven't fully read those two cases I cited based on what you just wrote about "services deemed to be only for government employees". But since you don't personally seem to be affected by the issue of contractor misclassification, I guess you yourself need not worry :). One of the main "holdings" of those cases is that the very label "contractor" and even any written contract at issue is not dispositive as to whether an individual worker is actually a true contractor versus a "common law" employee (i.e., a misclassified contractor).


But for ANYONE *ELSE* who is labeled a "contractor" but works at a federal agency on an ongoing basis under the direct supervision and control of a federal agency manager, and does the same general work as, and alongside, federal civil service employees-- and ESPECIALLY if you/they are mistreated compared to civil service "federal employees"-- then you should look into, and contact members of Congress about, contractor misclassification in federal agencies. (And speak to an attorney if there's a potential EEO issue involved-- because if you're a "contractor" who's controlled by federal agency managers, you most likely *DO* have access to the EEO process, though not the MSPB process the latter which is specifically for "civil service" employees).


There have been quite a few EEOC/OFO appeals involving individual complainants who were labeled as "contractors" but who were in effect (common law) employees of the agencies where they worked, who have successfully prevailed in EEO complaints where discrimination/retaliation against them occurred notwithstanding their "contractor" label. And although those EEO cases have (unfortunately!) not used the term "contractor misclassification", nevertheless by definition if you're a "common law" employee with standing to bring an EEO complaint despite being called a "contractor," then by definition you're a misclassified contractor according to lawmakers such as Sherrod Brown, Richard Durbin, and Bernie Sanders (the lawmakers most outspoken about contractor misclassification).

Edited by user Monday, March 8, 2021 9:55:07 PM(UTC)  | Reason: Not specified

Not liking something another person says doesn’t make the person “not know what you’re talking about”...


@King_fed, if the handful of “contractors” you know are happy with that status, good for them. There are also a minority of Uber drivers, even Google temps/contractors, who say they prefer to be “contractors” rather than “employees” under the law. But that’s not the case with the majority of contractors (if you cared to read the sources I posted several days ago above). The range of benefits—and experiences and treatment—that contractors get within one government agency can vary substantially from one person to the next, much less literally millions of contractors across many federal agencies.


And yes, as for the “proof”, or sources… The list of cases below are just a tiny handful of the many cases where the EEOC has held, from the 1990s through their most recent batch of cases to be publicly published in late 2020, “contractors” to in effect be common law and/or joint employees of the agencies where they’ve worked. So since I “don’t know what I’m talking about,” I guess the EEOC doesn’t either as I'm getting my information from them… But if you'd care to understand what the law actually is on contractors, joint employers, and “common law” employees, and their “employment” relationship with the government, then pull up and read the following cases. Even if you don't care about this, that doesn't mean other readers won't...


Rigborto A v. Dept. of Army, Appeal No. 2020002849 (November 16, 2020)

Ma v. Dept of Health and Human Services, EEOC Appeal Nos. 01962390, 01962389 (May 29, 1998)

King v. Dept. of Justice, EEOC Appeal No.0120111958 (October 3, 2012)

Feder v. DOJ, Appeal No. 0720110014 (May 14, 2013)

Edited by user Tuesday, March 9, 2021 8:34:25 PM(UTC)  | Reason: Not specified

Who's confused??


Obviously, my very gripe in my first post is that what Brown and Sanders have focused on in the private sector is even more ubiquitous in the federal sector, but that the Senators (erroneously!) have not focused on the government doing the same thing. So you're right, the Senators have (regrettably and counterproductively) not focused on any "federal contractors" (i.e., contractors-- whether true contractors or misclassified "contractors") in the federal government. When I refer to "federal contractors," I am not referring to businesses or entities. I'm referring to individual people, "contractors" who work at federal agencies, and on the latter basis are called "federal contractors." As the EEOC cases have made very clear, the common law of agency and employee status is wholly independent of whether the controlling master/supervisor/entity is the federal government, any government level/form, or a private sector entity.


And a "federal contractor" label certainty doesn't change the EEOC's consistent analyses of the issue of when contractors are "true" contractors, or in practice common law employees (i.e, misclassified contractors), per the cases cited above. Indeed, the EEOC appellate cases concern the federal government specifically, not the private sector. And indeed, the fact patterns in many such EEOC cases get at the inappropriate and ubiquitous use of "contractors" in the federal government is much THE SAME practice as what Brown, Sanders, et al have accused private companies of doing. So if Brown, Sanders et al. are truly against misclassifying and mistreating contractors for employers' expedience, at the exploitation and expense of the rights of individual "contractors," then they'd be against that very same practice whether it's the government or private companies. They cannot legally, legitimately or morally tell private companies not do engage in practice X, but condone the federal government's continuous engagement in the very same practice X.


If you're having trouble understanding the analyses of the cases I cited, of indeed the very points I've been making and repeating, maybe if you have any attorney friends, you can ask them to read the cases and explain the EEOC's and courts' analyses of "common law" (or de facto) employees to you.


On a total side note, you must be a fan of Ronald Reagan... You (sure seem to) like the government's massive use (and often exploitation) of contractors... You can thank Reagan for that. Before Reagan, you didn't have "contractors" working at federal agencies to even a small extent of what you've seen over the past few decades, they were almost all employees-- in actual classification/label and in effect. (And BTW, contracting out the government's work has costed taxpayers like you and I a lot *MORE* not less.)

Edited by user Tuesday, March 9, 2021 10:47:33 PM(UTC)  | Reason: Not specified

I actually worked as a contractor to a Fortune 500 company. The rules were very clear, we were NOT in any sense employees of the Fortune 500 company and were not treated as tho we were. We did not attend meetings with employees, we were always arms length - the unit did not even allow us to attend the weekly pizza party because it was paid for by organisation funds which could not be shared with individual contractors. I was very surprised, when I returned to civil service, to see contractors who were intermingled with federal employees - and especially with military. I can understand how things now may be very confused - but the basic rule still applies, surely? Contractors work for companies who sell their services under contract to another organisation. Independent contractors may work for another organisation, under a contract the IC controls. Anything else misunderstands the legalities.

I wish the government would stop trying to conceal costs by outsourcing them. In the end, it does no good to any element.

Edited by user Wednesday, March 10, 2021 6:54:28 AM(UTC)  | Reason: Not specified

Again... you are so far off... you don't know what you are talking about. You do mix in a bit of fact so you are not totally clueless.

I'll leave you to it... let you grind that ax.