BBG Watch Commentary
AFGE Local 1812, the union representing Broadcasting Board of Governors (BBG) employees, had warned repeatedly in the past about alleged abuses by a small group of longtime BBG’s International Broadcasting Bureau (IBB) executives which appear to be the primary cause behind the reported $400 million class action lawsuit filed last week in the U.S. Court of Federal Claims against the Broadcasting Board of Governors over personnel and contracting practices overseen by these top agency officials in recent years. The plaintiffs, several Voice of America (VOA) workers, allege that the U.S. government-funded, international news broadcaster’s Board of Governors denied proper pay and benefits to VOA employees intentionally misclassified as independent contractors by agency officials, Law360 website reported.
As reported by Law360, plaintiffs in the latest class action lawsuit allege that the Broadcasting Board of Governors has implemented a system of using “Purchase Order Vendors” (POVs) “for services indistinguishable from those of direct employees, to avoid a 30 percent budget increase from providing the lawful wages, paid leave, workers compensation, and tax contributions the workers are owed.”
“The BBG put the plaintiffs and class members on purchase orders so it could extract their faithful service to the United States while avoiding payment of the more substantial compensation that is owed to federal employees,” the complaint states.
READ MORE: US Gov’t News Workers Launch $400M Misclassification Suit, By Jimmy Hoover, Law360, December 22, 2015
“While Congress authorized BBG to acquire personal services from a maximum of 60 independent contractors, the board exceeded that number “by a factor of 10,” Law360 article reported.
The following AFGE Local 1812 commentary was posted in July 2014 and reposted by BBG Watch:
Are VOA Contractors Really Employees? – Commentary by AFGE Local 1812
July 29, 2014
AFGE Local 1812, which represents Broadcasting Board of Governors (BBG) employees, has posted a commentary on the Office of the Inspector General report accusing International Broadcasting Bureau (IBB) and Voice of America (VOA) officials of hiring contractors as permanent employees in violation of the law.
USEFUL LINK: Audit of the Broadcasting Board of Governors Administration and Oversight of Acquisition Functions, UNITED STATES DEPARTMENT OF STATE AND THE BROADCASTING BOARD OF GOVERNORS, OFFICE OF INSPECTOR GENERAL, JUNE 2014.
USEFUL LINK: Audit of Broadcasting Board of Governors FY 2013 Compliance With Improper Payments Requirements, UNITED STATES DEPARTMENT OF STATE AND THE BROADCASTING BOARD OF GOVERNORS, OFFICE OF INSPECTOR GENERAL, APRIL 2014.
BBG Watch is reposting the union’s commentary.
Are VOA Contractors Really Employees?
By American Federation of Government Employees, AFGE Local 1812
At many federal agencies, contractors are hired to: 1) supplement the federal workforce and, 2) to perform work not covered by federal positions or offering expertise or skills not available among staff. For decades this was the case at the VOA and worked well. Now the Agency is in trouble because, starting about a dozen years ago, it set on a course of hiring many more contractors than had been authorized by Congress, and supervising them as employees.
For years, the Union and others believed this to be the case, but the IBB Director and other high level management withheld pertinent information from employees, the Union, and even from members of the BBG.
A September 2013 preliminary report, obtained by the Union, reveals some of the information resulting from an investigation of the Agency by the Office of the Inspector General: in violation of the law, the Agency had hired 663 contractors when less than 10% of that number had been authorized under applicable legislation. The OIG was not alone in finding fault with Agency contractor practices. The IRS determined that these contractors met the criteria for employee status. These contractors were given work schedules in the same manner as employees, managed in the same manner as employees, and supervised in the same manner as employees; however, the Agency did not provide these contractors with employee benefits, these contractors were not accorded the protections of labor law pertaining to employees, nor did the Agency fulfill its obligation regarding payroll deductions, withholding, and payment of an employer’s portion of Social Security and Medicare taxes on behalf of these ‘contractors’.
It is interesting to note that the Washington bureau of the Voice of Russia had similar violations of law in their hiring of contractors, and that bureau was shut down.
Why did the Agency take it upon itself to hire so many contractors in violation of existing regulations?
There is a strong feeling among many Union members that the Agency’s intent in hiring so many contractors over and above the allotted number was, in fact, a back door to de-federalization. Some BBG members and IBB managers favored, and still do favor, de-federalization of the workforce, arguing for it on the Hill as an option for VOA and OCB. A report from Deloitte Consulting, commissioned by the Agency in 2011, discussed just how de-federalization could be accomplished. A former BBG member even testified on the Hill about the supposed positive aspects of that option. By building up a contractor corps, the Agency could more easily sustain its broadcasts if Congress should approve the privatization/de-federalization option.
As we said, contractors have traditionally been used in VOA broadcasting to supplement, not supplant staff, filling in evening, night and holiday shifts or to secure talent, specialists and expertise not available among its regular staff. For example, in the 1950’s, VOA hired jazz expert and radio personality Willis Conover as a contractor. He had skills and knowledge that none of the Agency’s federal workforce had. Even though he did not have the benefits of a staff employee, Conover welcomed his contractor status to ensure that he would retain independence. He believed that in a bureaucracy, his independent streak could have been interpreted as insubordination if supervised by the wrong type of Agency manager. In contrast to the contracting-out system and policies currently utilized by the Agency, Conover, in both a legal and practical sense, perfectly fit the definition of an independent contractor. The contractors presently employed by the BBG do not; therefore, using the success of the Conover independent contractor status as an example for current contracting-out policies is not pertinent.
In spite of the blistering OIG report, the Agency is still pursuing its less-than-legal contracting-out policies with some added embellishments. The Agency recently announced a Contractor List Serv to connect to its current list of almost 700 contractors. This would allow the Agency a path toward avoiding the issue of inappropriate direct supervision by Agency management of many contractors, but the problem of improper and de-facto direct conversion of federal positions to contractor positions remains. The Union believes that the Agency is violating federal regulations by filling government jobs with contractors even if a third party is involved.
The Union believes that even though the Agency is attempting ‘Band Aid fixes’ to cover their decade-long, errant contracting policies and practices, the Agency has failed to fundamentally address its violation of law and regulation.
The question is, how much will Agency flouting of law and regulation cost the taxpayers this time?