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Is your company a joint employer with the government?

Q&A with Michael Avery

published in The Oklahoman | August 21, 2012

In a recent case filed in the U.S. District Court for the Western District of Oklahoma, an employee of a company that contracted to provide transportation services to an Oklahoma municipality filed multiple employment claims not only against his employer, but also the city. While the city was successful in getting dismissed from this particular lawsuit, the case shed light on the circumstances under which a government or governmental entity can be named a co-defendant in unwanted litigation involving the employees or former employees of companies which contract to provide them services.

In a Q&A with The Oklahoman, McAfee & Taft trial lawyer Michael Avery said that several employment-related causes of actions, including unlawful discrimination under Title VII and the Americans with Disabilities Act, require that the plaintiff demonstrate an employment relationship between himself and the defendant. In those instances where the employer who is sued contracts to provide services on behalf of the government, the current or former employee may also try to attach liability to the governmental client and name the government as a co-defendant. To successfully do so, though, the plaintiff must prove that the government was a joint employer.

“The court will endeavor to determine whether, on an individual basis, the company and the government share or co-determine the essential terms and conditions of the individual’s employment,” said Avery. “Most important to the court’s analysis will be whether the government has or shares in the right to terminate the individual’s employment.”

According to Avery, companies that wish to avoid having their government clients dragged into employment litigation need structure their contractual relationships in a specific manner. “Most importantly, these companies should ensure, to the greatest extent possible, that the governmental entities with which they contract do not have control over the day-to-day conditions of the company’s employees’ work and, perhaps most importantly, do not have the power to terminate company employees.”