Suing the Government as a 'Joint Employer' - Evolving Pathologies of the Blended Workforce

Abstract

As the 'blended workforce' - a realm in which contractors work alongside, and often are indistinguishable from, their Government counterparts - becomes more commonplace, the distinction between civil servants, members of the military and contractor employees increasingly blurs. One intriguing (and, apparently, accelerating), yet little-known trend is that contractor employees are more frequently suing the Government, alleging employment discrimination on the part of Government managers, supervisors or even coworkers. This short piece discusses the evolving 'joint employer' liability doctrine. It suggests that The federal courts' and the EEOC's willingness to define federal agencies as de facto employers of contractor employees is further evidence that the prohibition on personal service contracts is - or should now be deemed - a dead letter. Ultimately, it concludes that both the Government and its contractors need to understand that, as federal agencies continue to rely on contractors for their staffing needs, the ability to distinguish between civil servants and contractors - in the eyes of the law - will become increasingly more difficult.

Keywords: blended workforce, personal services contracts, outsourcing, Title VII, joint employer liability, employment discrimination, EEOC

JEL Classification: H57, J71, K12, K23, L33, L84