**BONNEVILLE POWER ADMINISTRATION**

**HUMAN RESOURCES, DIVERSITY AND EEO**

#### PORTLAND, OREGON

## PERSONNEL LETTER NO. 900-3 Date: August 9, 2002

# **SUBJECT:** Application of Equal Employment Opportunity (EEO) Laws to Contractors.

I.  **PURPOSE OF ISSUANCE**

> This letter provides guidance to Bonneville Power Administration's
> (BPA's) managers and employees regarding the application of EEO laws
> to contractors and contingent workers.

II. **BACKGROUND**

> BPA prohibits discrimination in any job-related matter on the basis of
> any personal factor that is not related to an individual's job
> performance. In addition, federal statutes protect contract employees
> from employment discrimination based on race, color, religion, sex,
> national origin, age, and/or disability. The Equal Employment
> Opportunity Commission's (EEOC's) Notice Number 915.002 issued
> December 3, 1997, states that contractors and contingent workers whose
> working conditions meet certain criteria outlined in the EEOC's
> guidance may be covered under the anti-discrimination statutes.

III. **COVERAGE**

> This guidance focuses on contractor employees who are hired and paid
> by a "staffing firm," such as a temporary employment agency or
> contract firm, but whose working conditions are controlled in whole or
> in part by Bonneville Power Administration, to whom they are assigned.

**IV. REFERENCES**

A.  EEOC Notice Number 915.002, Enforcement Guidance: Application of EEO
    Laws to Contingent Workers Placed by Temporary Employment Agencies
    and Other Staffing Firms

B.  EEO MD-110, Equal Employment Opportunity Management Directive for 29
    C.F.R. Part 1614

C.  29 CFR Part 1614, Federal Sector Equal Employment Opportunity

D.  Personnel Letter 752-3, Harassment-Free Workplace Guidance

E.  Personnel Letter 900-1, Policy on Alternative Dispute Resolution
    (ADR) for Workplace Disputes and Conflicts at BPA

F.  Bonneville Purchasing Instructions Clause 3-8, Contractor Compliance
    with BPA Policies

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V.  **DEFINITIONS**

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A.  **[Staffing Firm]{.underline}:** As used in the EEOC Notice, a
    staffing firm is a temporary employment agency, contract firm, or
    other firm that hires workers and places them in job assignments
    with BPA.

B.  **[Contingent Worker]{.underline}:** A contingent worker is
    generally a contract employee who is placed in a job assignment by a
    temporary employment agency or other staffing firm. Contingent
    workers are not federal employees and are generally outside BPA's
    core work force. Their jobs are usually structured to last only a
    limited period of time, are sporadic, or differ in some way from the
    norm of full-time, long-term employment.

C.  **[Independent Contractor:]{.underline}** An independent contractor
    generally brings a higher level of skill or expertise to the job;
    maintains control over when, where, and how the work is to be
    performed, is in a distinct occupation, and provides for his/her own
    tools or equipment. An independent contractor is often self-employed
    for tax purposes, and may hire assistants through

> sub-contracting. Examples include investigators, trainers, and
> consultants.

**VI. RESPONSIBILITIES**

A.  **Manager, Human Resources, Diversity and EEO is responsible for:**

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1.  Ensuring that managers and supervisors are familiar with, follow,
    and implement BPA's policy regarding the application of EEO laws to
    contract employees.

2.  Processing formal EEO complaints filed by contractors, keeping
    careful attention to the guidelines herein. The Manager, Human
    Resources, Diversity and EEO, will dismiss the complaint for lack of
    jurisdiction where it can be determined that the complainant is an
    independent contractor or that BPA does not meet the criteria for
    being considered an "employer" or "co-employer" of the complainant
    under these guidelines.

3.  Notifying the appropriate Contracting Officer when a contractor has
    filed a formal complaint of discrimination against BPA.

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B.  **EEO Counselors** **are responsible for the following during
    informal counseling:**

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1.  Providing EEO counseling to contract employees as is normally
    provided to BPA employees and applicants. This includes informing
    contractors of other avenues of redress appropriate to their
    situations.

2.  Explaining guidance related to the application of EEO regulations to
    contract employees.

3.  Attempting informal resolution at the lowest possible level when
    anonymity is waived.

4.  Also when anonymity is waived, informing contracting officers of
    situations where BPA contractors may have violated BPA's policies
    regarding the workplace environment.

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C.  **BPA Managers are responsible for**:

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1.  Establishing and maintaining a work environment where performance
    and productivity are the determining factors that guide employment
    and personnel decisions, and where such decisions are not
    compromised by personal biases that hinder sound judgment and
    adversely affect BPA's work environment.

2.  Informing contract employees who communicate concerns about
    discrimination that they must contact a BPA EEO counselor within 45
    days of an event perceived as discriminatory if they believe that
    BPA is responsible for the discrimination. If they believe that
    their employer is discriminating them against, they must file a
    charge with an EEOC District Office or the Human Rights Office for
    the state in which they work.

3.  Informing Contracting Officers of situations where BPA contractors
    may have violated BPA's policies regarding the workplace
    environment.

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D.  **Contracting Officers are responsible for:**

> Assuring that BPA contract firms are informed of BPA policies
> addressing the workplace environment and personal behaviors that apply
> to all BPA employees and BPA contractors working or visiting on site.

**VII. GUIDANCE**

A.  Contractors who are provided to BPA by a staffing firm are generally
    covered under the anti-discrimination statutes. This is because they
    typically qualify as "employees" rather than acting as independent
    contractors. Therefore, neither the staffing firm nor BPA may
    discriminate against them on the basis of race, color, religion,
    sex, national origin, age, disability, or reprisal for protected
    activity.

B.  Whether a worker is considered an "employee" within the meaning of
    the federal employment discrimination law depends on whether he/she
    is more like an "employee" or more like an "independent contractor."
    The EEOC has identified a number of factors to consider when
    evaluating this employment relationship. Factors that indicate that
    the worker is covered include but are not limited to:

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1.  A staffing firm or BPA has the right to control when, where, and how
    the worker performs the job;

2.  The work does not require a high level of skill or expertise;

3.  A staffing firm or BPA, rather than the worker, furnishes the tools,
    materials, and equipment;

4.  The work is performed on BPA premises;

5.  There is a continuing relationship between the worker and the
    staffing firm;

6.  The staffing firm or BPA has the right to assign additional projects
    to the worker;

7.  The staffing firm or BPA sets the hours of work and duration of the
    job;

8.  The worker is paid by the hour, week, or month rather than for the
    agreed cost of performing a particular job;

9.  The worker has no role in hiring and paying assistants;

10. The work performed by the worker is part of the regular business of
    the firm or of BPA;

11. The firm or BPA is itself in business;

12. The worker is not engaged in his or her own distinct occupation or
    business;

13. The staffing firm provides the worker with benefits such as
    insurance, leave, or workers' compensation;

14. The worker is considered an employee of the staffing firm for tax
    purposes;

15. The staffing firm or BPA can discharge the worker;

16. The worker and the staffing firm believe that they are creating an
    employer-employee relationship.

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C.  The above list is not exhaustive. Other aspects of the relationship
    may affect determination of whether there is potential for
    liability. An assessment will consider all of the circumstances in
    the relationship between the parties.

D.  The types of claims that may be brought against BPA include
    harassment, discriminatory assignments, discriminatory termination,
    failure to provide reasonable accommodation, and retaliation for
    activity protected by the Civil Rights Laws.

E.  Contract employees who believe they have been discriminated against
    by BPA must follow the same administrative process for filing a
    complaint of discrimination that BPA employees must follow. They
    must contact a BPA EEO Counselor within 45 days from the date of the
    event perceived as discriminatory, or from when they found out about
    the event.

F.  Contract employees who believe they have been discriminated against
    by their employers must contact the District Office of the Equal
    Employment Opportunity Commission (EEOC) in Seattle, Washington.
    They may also contact the Human Rights Office of the state in which
    they work.

G.  When a contract employee files a formal complaint of discrimination
    against BPA, BPA will determine whether the complainant's working
    relationship meets the criteria for BPA to have potential liability
    or responsibility based on the factors listed above. If the Manager,
    Human Resources, Diversity and EEO, determines that the worker is
    considered an independent contractor, the complaint will be
    dismissed for lack of jurisdiction, normally within 45 days of when
    the complaint was filed. Such a dismissal could be appealed to the
    EEOC, who would ultimately determine whether the complaint would
    have standing.

**VIII. RELATIONSHIP TO OTHER PROCESSES**

A.  BPA's Alternative Dispute Resolution (ADR) Program, within the EEO
    complaint process, may be made available to contract employees
    according to the criteria outlined in MD 110 issued by the EEOC.
    Policy and procedures related to the use of BPA's ADR Program are
    described in PL 900-1.

B.  Contractors who are working at BPA are also protected by BPA's
    Harassment-Free Workplace Policy.

C.  Contractors who are employees of a staffing firm may pursue
    simultaneous complaints against BPA and against the staffing firm if
    they perceive joint responsibility for the discriminatory behavior.

Godfrey C. Beckett

Manager, Human Resources, Diversity and EEO