I need this project completed by next week! We decided to move your offices down two floors. Can you work through the weekend? Most contractors are used to their government customers’ idiosyncratic preferences. Satisfying the customer’s needs is par for the course. But at what point does a government official’s overbearing nature change from inconvenient to impermissible? This is a question we’ve been hearing more and more often from our clients. As a rule, the government is not supposed to interject themselves into the employment affairs of government contractors. However, as more and more seasoned contracting officers and other contracting officials retire, the likelihood that inexperienced government officials will over-step their authority with respect to employment matters magnifies. The following examples of government micromanagement should raise immediate red flags:
- The government insists that you fire an employee for “insubordination”
- A government employee drafts one of your workers a warning letter
- Your employee is being harassed by government employees
- A government official calls your worker by a racial slur
- The government directly instructs your employees to work overtime
- The contracting officer asks you to justify the wages and benefits you pay workers
- The government insists you hire a worker as an independent contractor to keep them on the project
Simply accommodating this type of government action not only affects your bottom line and your ability to perform the contract, but it can carry significant legal ramifications for you and for the government. Rather than risking becoming the target of an employee’s harassment, wage & hour, or wrongful termination claim, contractors should take and maintain agency of employment matters.
Because saying “no” to your government customer carries risks of its own, we recommend employing the following tactics to notify the government of a potential problem:
- Do not ignore your legal duty to report discrimination or harassment in compliance with federal equal employment opportunity protections and your own company harassment-free workplace policy.
- Make sure you understand any reserved rights in the contract for the government and what right you have to push back.
- Escalate the issue up to the contracting officer who is the ultimate individual responsible for the government’s compliance with the contract.
- Remember your resources, such as the agency’s equal employment opportunity office or the small business liaison.
- Alert the government that their representative’s actions may violate the applicable standards of conduct for government employees.
- If the conduct interferes with your ability to perform work on the contract or otherwise causes the company damage, remind the government that the company may be entitled to recover these damages from the government.
- Remind the government that its conduct could subject it to joint employer liability if the employee files a complaint.
Overall, government employees are held to a high standard of conduct because public service is a public trust. That said, the realities of working as a contractor are challenging, especially when your livelihood is on the line. Do not fall for the trap of sitting idly by and becoming the focal point of an employee complaint. These various employment law considerations should remind you that there are limits to government authority on non-personal services contracts that may protect you when these situations arise.
About the Author: Sarah Nash is an associate with PilieroMazza in the Labor and Employment Group. She may be reached at [email protected].