Employee of Private Contractor a Public Employee?

Patrick Scully

The United States Court of Appeals for the Second Circuit has held that an employee of a private contractor enjoys the rights of a public employee with a “property interest” in his employment.

The plaintiff was employed as a court security officer (CSO) for a private company that contracted with the United States Marshals Service (USMS) to guard a federal courthouse.  The plaintiff was covered by a collective bargaining agreement (CBA) between the private employer and the union.  The CBA provided CSOs could only be terminated for “just cause”.  However, under the contract between the USMS and the employer, the USMS had an unqualified right to remove any CSO from providing service at the federal courthouse.

When the plaintiff left his post early and his employer decided to retain him regardless, the USMS exercised its right to remove the plaintiff from working at the courthouse.  The plaintiff sued in federal court, arguing that the “just cause” provision in the CBA gave the plaintiff a property interest in his employment entitling him to “due process” prior to removal by the USMS.

The Court of Appeals agreed with the plaintiff’s argument, effectively concluding the plaintiff is a “public employee”.

This decision is a troubling development insofar as it suggests that a private contractor must comply with all private sector employment laws while the government entity must simultaneously treat unionized employees of private contractors as public employees.  The result appears to be de facto joint employment of such employees, which eliminates most benefits to the government of a contracting arrangement in the first place.  It will be interesting to see if other courts adopt the Second Circuit’s analysis.

Atterbury v. United States Marshals Service, Docket Nos. 18-1713-cv(L); 18-2378-cv(Con)