EEOC holds worker may be an Agency employee even if not paid by Agency. Complainant filed an Equal Employment Opportunity (EEO) complaint alleging discrimination based on sex (male) when he was terminated from his employment. The Agency issued a final decision dismissing the complaint for failure to state a claim because Complainant was an independent contractor, not an employee and therefore lacked standing. Complainant appealed and argued that although he was an independent contractor, the Agency was involved with his hiring, assigning him work, interacting with him, and influencing his termination.

On appeal, the EEOC’s Office of Federal Operations (OFO) noted that Agencies often conclude that an individual is not an employee based solely on the fact that the individual’s paycheck is written by a different organization. Although that is one relevant factor to determining an employer, there are several other factors to consider, and it is possible to have a joint-employment situation. In the instant situation, the OFO held that the record was insufficient to determine whether the Agency jointly employed the Complainant. Specifically, the record was missing the employment contract, a position description, or any evidence of day-to-day actions and responsibilities. The Agency’s final decision was vacated and remanded for a supplemental investigation to determine employment status.

Herschel T. v. National Aeronautics and Space Admin., EEOC Appeal No. 2020003134 (Oct. 15, 2020)

Attorney Kirk J. Angel represents federal employees throughout the United States.