By Meghan Droste, May 16, 2018
As the regular readers of this column know, I generally represent employees, both in the federal and private sector. In my time I have also represented federal agencies, so I have seen how resources can be stretched thin at times. Agencies often have too many cases and simply not enough time to handle them. Faced with these circumstances, I can understand the temptation to dismiss complaints as early as possible.
As a complainant’s counsel, it seems that when there is a joint employer issue, agencies automatically dismiss the case as soon as they receive the formal complaint. This means, of course, that I have to file an appeal. When briefing the issue, there is very little to discuss because the agency has not created any record. This makes it more difficult for me to support my position that the agency is a joint employer, but it makes it nearly impossible for the agency defend its position that it is not.
The question of whether the agency is a joint employer turns on an analysis of several factors that come from Ma & Zheng v. Department of Health & Human Services, EEOC App. No. 01962389 (May 29, 1998). This is a very fact-specific inquiry, focused on factors such as who assigns work to the complainant, who approves leave requests, and who selected and/or removed the complainant from the position. Too often, agencies look only to the language of the contract between the agency and contracting company—which inevitably states that there will not be an employee-employer relationship with the agency and the contractors—to support the position that the complainant was not an employee. Agencies reach this conclusion without any investigation into the other factors. The Commission then inevitably concludes that the record is insufficient and remands the complaint to the agency for investigation. A search of Commission decisions reveals several appeals with this exact outcome. See, e.g., Alan F. v. Dep’t of Agric., EEOC App. No. 0120161089 (March 5, 2018); Complainant v. Army, EEOC App. No. 0120150809 (June 12, 2015); Complainant v. Dep’t of State, EEOC App. No. 0120131112 (October 17, 2014); Tolbert v. Dep’t of Defense, EEOC App. NO. 0120113572 (January 24, 2013).
I recommend that agencies carefully consider whether to dismiss a complaint for failure to state a claim in potential joint employer cases. While it may seem like a time saver, it will likely end up taking up unnecessary resources in an appeal the agency will not win.
If you have specific questions or topics you would like to see addressed in a future Tips from the Other Side column, email them to me: Droste@FELTG.com.