News from the Federal Circuit: On August 25, 2016, the Court of Appeals for the Federal Circuit issued its decision in Estes v. Merit Systems Protection Board, No. 2016-1081. Although the court rejected Mr. Estes' appeal, it adopted the MSPB's precedent in holding that federal contractors could raise "joint employer" claims under USERRA against the federal government.
Contract employees working for the federal government sometimes are supervised directly by the federal agency in addition to their directly-employing contacting company. If those employees suffer adverse actions--especially where the wrongdoer works for the federal government and not the contracting company--the question arises whether or not the victim is limited to suing the contracting company, or if they can also raise a claim against the employing federal agency as a "joint employer." The answer depends on which statute the employee's claim falls under. Historically, the EEOC and MSPB have accepted "joint employer" EEO claims, as previously discussed in this blog. The MSPB has rejected this claim for normal adverse action appeals and for whistleblower reprisal claims under the Whistleblower Protection Act.
At issue in Estes was whether or not "joint employer" analysis would allow suits against federal agencies for discrimination or retaliation based on uniformed service in violation of USERRA. In a 2009 decision, Silva v. Department of Homeland Security, 112 M.S.P.R. 362, ¶ ¶11-15 (2009), the MSPB held that "joint employer" does apply to USERRA claims by government contract employees in appropriate circumstances. However, until Estes, the Federal Circuit had not squarely endorsed Silva and its "joint employer" holding (although it did obliquely reference Silva's holding in dicta in a 2015 case, Jolley v. Dept. of Justice). In Estes, the court adopted the "joint employer" analysis of Silva. While Mr. Estes ultimately lost based on an argument that he had failed to factually prove "joint employer" status in his particular case, the court left the door open for future claims to raise "joint employer" USERRA claims where the facts support use of a "joint employer" theory.
If you are a veteran working for the federal government (whether as a civil service employee or as a government contractor), and you wish to discuss your rights, consider contacting Passman & Kaplan, P.C. to request an initial consultation.