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

Government Contractor, Vol. 52, No. 39, p.341, October 2010

GWU Legal Studies Research Paper No. 517

GWU Law School Public Law Research Paper No. 517

7 Pages Posted: 21 Oct 2010 Last revised: 31 May 2012

Steven L. Schooner

George Washington University - Law School

Collin D. Swan

Office of Suspension and Debarment, The World Bank; George Washington University - Law School

Date Written: 2010

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

Suggested Citation

Schooner, Steven L. and Swan, Collin D., Suing the Government as a 'Joint Employer' - Evolving Pathologies of the Blended Workforce (2010). Government Contractor, Vol. 52, No. 39, p.341, October 2010; GWU Legal Studies Research Paper No. 517; GWU Law School Public Law Research Paper No. 517. Available at SSRN: https://ssrn.com/abstract=1695164

Steven L. Schooner (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-3037 (Phone)
202-994-5614 (Fax)

HOME PAGE: http://www.law.gwu.edu/Faculty/profile.aspx?id=1740%20

Collin D. Swan

Office of Suspension and Debarment, The World Bank

1818 H Street, NW
Washington, DC 20433
United States

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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