Ask The Lawyer

By Debra Roth

How to handle contractor complaints

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Many federal managers are responsible for managing a workforce that consists of both federal employees and contractors. When this happens, federal managers typically have questions about just how much management authority they have over their contracted employees.

When issues arise in the workplace, it can cause concern about the federal manager’s jurisdiction in managing the complaint — especially when it comes to employment discrimination complaints lodged by a contracted employee against a member of the federal workforce.

The Equal Employment Opportunity (EEO) rules and regulations applicable to the federal workforce do not usually transfer to contracted employees. The Equal Employment Opportunity Commission (EEOC) typically has no jurisdiction over complaints of discrimination filed by contractors. Instead, contracted employees who are filing a complaint turn to the Office of Federal Contract Compliance Programs (OFCCP), which administers and enforces equal employment opportunity laws for private-sector employees who enter contractor agreements with the federal government.

Contracted employees who feel their company has discriminated against them can file a complaint with OFCCP. OFCCP has the authority to evaluate and investigate a contractor’s personnel policies and procedures. This can be done through various methods, including conference, counseling and mediation. Ultimately, OFCCP has the deciding authority in whether to terminate a contractor’s agreement with the government if the private company continues to fail to comply with the EEO provisions of the contract. OFCCP is purely private-sector oriented and has no authority to investigate unfair employment practices directly involving federal employees or agencies.

This process may make it seem as though federal managers are not accountable for complaints lodged against federal workers by contracted employees. This is hardly the case. If an agency or manager exerts too much control over a contracted employee, the contractor can be deemed an employee of the federal agency for purposes of accessing the federal EEO system and he or she could be granted all appeal rights before the EEOC and Merit Systems Protection Board.

The EEOC has final authority in determining whether a federal agency should be held accountable as an employer. Factors used to determine who qualifies as a federal employee include:

*The extent to which the agency controls and manages the nature of the work performed by the employee.

*The level of supervision provided by the agency in the contractor’s work.

*The skill required in the particular occupation.

*Whether the agency furnishes the equipment used and the place of work.

*The length of time the individual has worked for the contractor versus the agency.

EEOC places the burden on the agency to show a contractor is not entitled to access its EEO process. EEOC has used the Common Law of Agency Test in a number of recent decisions to determine whether an individual is an employee of the agency.

In some cases, EEOC may determine that an individual is actually in a joint employment relationship and is working for both an agency and his private employer.

Managers should exercise caution when discussing performance or disciplining contracted employees. Remember the general rule that the contractor has authority over the employee, not you. One of the best tactics to resolve the issue while protecting the agency’s liability is to approach the contractor manager of the contracted employee instead of going straight to the employee.

When questions arise regarding just whom the employee is working for, I recommend referring to the original contract agreement between your agency and the contracted firm. It likely holds some key language or a specific provision that will assist in determining who is responsible for the employee.

Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to askthelawyer@federaltimes.com.

Drug history need not derail security clearance

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Getting a security clearance is not easy. The application process includes an extensive background investigation into the applicant’s personal life.

One reason your clearance can be denied is drug involvement. If there are mitigating factors, however, you might still be able to obtain clearance.

Under Title 10 of the U.S. Code, any person who is an unlawful user of, or addicted to, a controlled substance, as defined in the 1970 Controlled Substances Act, may not be granted access to classified information.

If your application is denied, you will be issued a notice that outlines the reasons for the decision and your right to appeal. If you choose to appeal, you must provide a written, thorough response that explains the conduct. The response should address each security concern individually. This is your opportunity to provide any information that explains or refutes the adjudicator’s concerns. Following your response, you will be notified of a final decision within 60 days. If your mitigation attempts were unsuccessful, you will be given the opportunity to appeal and request a hearing in front of an administrative judge.

It is at the response and appeal stages when the mitigating factors come into play. In addition to the list of conditions used to disqualify applicants, the adjudicative guidelines also include a list of conditions used to alleviate security concerns and grant you clearance. Those factors are:

*Evidence of reform and rehabilitation. This could be as basic as proving that the one time you smoked marijuana five years ago should not cast doubt on your current reliability, trustworthiness and judgment.

*Successful completion of a drug treatment program.

*Nature of the abuse. If the drug abuse stemmed from an addiction to antidepressants following a bout of postpartum depression, and the abuse has since ended, these factors will be taken into consideration.

If you have evidence of rehabilitation, obtain written documentation from the medical professional who treated you to submit with your response. You can request that the doctor appear on your behalf.

If the misconduct is recent, you must demonstrate intent not to abuse drugs in the future. You may be asked to sign a statement of intent to refrain from drug use and a notice that any violation will lead to automatic revocation of your clearance.

Even an extensive history of drug involvement can be mitigated by displaying sufficient evidence of rehabilitation. In a January hearing before the Defense Office of Hearings and Appeals, the applicant in question used marijuana about once a month on social occasions from 2004 to 2008. He admitted the use during the investigation and provided sufficient evidence of a lifestyle change and his intent not to abuse in the future. His clearance was granted.

This case proves that past involvement with drugs — no matter how large or small — should not deter you from taking the steps toward obtaining a security clearance. If you know you have instances in your personal history that may lead to denial of a clearance, I recommend bringing an attorney into the process early on. A legal professional familiar with the adjudicative guidelines can be invaluable in compiling an honest application, supplying the evidence necessary to mitigate concerns, and reaching the goal of obtaining a security clearance.

Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to askthelawyer@federaltimes.com.

Handling employee removal and termination

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One of the most difficult decisions you make as a manager is to fire an employee.

First, understand that the terms “termination” and “removal” do not mean the same thing.

Removal is when an employee is separated as a result of adverse action procedures, because of problems such as poor performance, misconduct or the loss of a security clearance. Removals also extend to cases involving special circumstances, such as furlough or medical inability.

Termination is attached to decisions involving probationary or trial-period employees, temporarily appointed employees, and employees removed due to background investigation determinations of negative suitability.

Employees who are removed have appeal rights before the Merit Systems Protection Board. Employees who are terminated have limited MSPB appeal rights, but have the right to file complaints or grievances with the Equal Employment Opportunity Commission or requests for corrective action with the Office of Special Counsel.

To limit the liability of your agency: Determine an appropriate date for the separation. The employee must receive notice on or before the effective date of the action.

Pay close attention to whether the employee is entitled to advance notice. This is often the case with employees covered by collective bargaining agreements. Also, if you are separating the employee based on poor performance or misconduct, the employee is entitled to a 30-day notice under Title 5 of the U.S. Code.

Next, deliver the notice. While no law or regulation specifies the notice must be delivered in person, I strongly recommend that you schedule an in-person meeting with the employee to deliver the news. Choose a private place and, if possible, schedule the meeting for the end of the day.

Bring the following to the meeting:

* Original notice of decision — signed by you, dated, and to be sent to human resources following the meeting — and a copy for the employee.

* A copy of the employee’s grievance and appeal rights.

* A copy of an SF-8, Notice to Federal Employee About Unemployment Insurance. The Labor Department requires this form be issued to all employees separated from service.

During the meeting, communicate that the decision is final and not open for discussion, and that appeal rights are outlined in the letter. Don’t be apologetic or imply that you weren’t involved in the decision, but don’t suggest that the employee had it coming and deserves to be unemployed. Simply deliver the written notice to the employee and indicate that any questions regarding the reasons for the decision can be answered by referring to the written notice.

If an attorney or union representative has represented the employee in the separation process, those representatives should be invited to attend the final meeting.

But if the employee has not been represented, then he has no legal right for representation at the meeting. This rule of thumb extends to employees in bargaining units. Union representation if previously uninvolved in separation proceedings should not be invited to attend nor assumed to be providing representation in the matter. Nor should the union receive a copy of the decision unless specifically indicated by the employee. Including unwanted union representation in termination or removal notices is a violation of employee privacy rights.

Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to askthelawyer@federaltimes.com.