Borrowing from Darden, the Equal Employment Opportunity Commission adopted the common-law agency test to determine whether an individual is an agency employee versus a contractor. Ma v. Dep’t of Health and Human Servs. The common-law agency test considers “all of the incidents of the relationship between the appellants and the agency.” In the EEOC Compliance Manual, the Commission set forth factors which essentially mirror those of the common-law agency test that indicate a worker is in an employment relationship with an employer, including the following:
- The employer has the right to control when, where, and how the worker performs the job.
- The work does not require a high level of skill or expertise.
- The employer furnishes the tools, materials, and equipment.
- The work is performed on the employer’s premises.
- There is a continuing relationship between the worker and the employer.
- The employer has the right to assign additional projects to the worker.
- The employer sets the hours of work and the duration of the job.
- The worker is paid by the hour, week, or month, rather than the agreed cost of performing a particular job.
- The worker does not hire and pay assistants.
- The work performed by the worker is part of the regular business of the employer.
- The worker is not engaged in his/her own distinct occupation or business.
- The employer provides the worker with benefits such as insurance, leave, or workers’ compensation.
- The worker is considered an employee of the employer for tax purposes (i.e., the employer withholds federal, state, and Social Security taxes).
- The employer can discharge the worker.
- The worker and the employer believe that they are creating an employer-employee relationship.
These same criteria apply when determining whether an individual is jointly employed by the federal agency and the contracting company. “A determination of joint employment requires an examination of the amount and type of control the staffing firm and the agency each maintain over the Complainant’s work, whether or not the individual is on the federal payroll.” Baker v. Dep’t of Army. “For example, the Agency is an employer of the Complainant if it supplies the work space, equipment, and supplies, and if it has the right to control the details of the work performed, to make or change assignments, and to terminate the relationship.” EEOC’s Enforcement Guidance: “Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms.”
- Cortez J. v. Dep’t of Navy:Even though the staffing firm completed Complainant’s performance appraisal, the Agency provided input for the appraisal, and had significant input into the decision to terminate Complainant.
- Letty K. v. Dep’t of Defense: While the Agency did not provide Complainant with retirement benefits or leave, or pay social security taxes, the Agency maintained the ability to terminate Complainant.
- Nannette T. v. Dep’t of Army: Although the contractor provided Complainant with her leave and benefits and withheld taxes, and Complainant referred to herself as a contractor, she performed duties related to military intelligence in a top-secret Agency facility, using tools, equipment, and materials provided by the Agency.
- Jesse R. & Arthur F. v. Dep’t of Justice: Notwithstanding that the Complainants worked on premises provided by the staffing firm, performed work requiring a high level of expertise, and received wages and benefits from the staffing firm, the record showed that an Agency manager routinely assigned one Complainant projects and duties, and dictated the other Complainant’s schedule, travel, and contacts.
Cases in which the Commission found the individual was a contractor, and thus not jointly employed with a federal agency, include:
- Jared F. v. Dep’t of Defense: Even though the Complainant used equipment provided by the Agency, and he had worked on the Agency’s premises for 15 years, his position did not require a high level of skill or expertise, nor was he supervised by Agency staff or compensated by the Agency.
- Erick N. v. Nuclear Regulatory Comm’n: The Agency’s staff gave Complainant his assignments, designated his hours and where his work was performed, and provided him with the tools and equipment needed to perform his duties. The staffing firm, though, handled Complainant’s pay and benefits. After the Complainant had an altercation with an Agency employee, the Agency asked the staffing firm to find a resolution other than to terminate the Complainant. In response, the staffing firm conducted its own investigation, and decided to reassign Complainant to other clients. The Commission regarded this as an indication that the staffing firm retained full power over the Complainant’s employment and significant enough to deem him a contractor, rather than an Agency employee.
- Aracely J. v. Dep’t of Navy: Although the Complainant performed work at an Agency work space, using Agency equipment, the Complainant was supervised by an employee of the contractor. Additionally, in finding that the individual was a contractor, the Commission relied on the fact that the contract between the Agency and the contractor provided that the contractor was responsible for developing the framework for the program, providing training, and ensuring that personnel completed all necessary functions.