That’s a big turnaround from 2002, when agencies kept 9,200 investigations in-house and outsourced 4,500, said Bob Barnhart, acting director of federal-sector programs for EEOC.
The shift to contractors parallels five years of decline in the time it takes to conduct investigations. For the first time, in 2007, average investigation completion time dipped below 180 days, to 176 days, according to the report.
Agencies are contracting out routine cases so that a small cadre of in-house investigators can work on more complex cases involving multiple issues, sensitive issues or high-level officials, said Jorge Ponce, co-chairman of the Council of EEO and Civil Rights Executives.
Cost is one of the driving factors in the outsourcing, Ponce said. Contract employees are paid less, and their benefits are not as generous as federal employees’ are, he said.
Using contractors allows NASA to stay within regulatory time frames and increase efficiency, a NASA spokeswoman said. Last year, the agency had the best record in government, investigating all of its 25 cases within 180 days, according to the EEOC report.
Gabrielle Martin, president of the National Council of EEOC Locals for the American Federation of Government Employees, was critical of the practice.
“If they can find a way to get [the work] done cheaper, they will,” Martin said. “When you’re getting contractors, you’re looking for the cheapest person you can get. … It’s like hiring scab labor for strikes.”
Employee advocates, like Andrea Brooks, national vice president of AFGE’s Women and Fair Practices Department, also question the quality of the contractor work.
“These contractors want their jobs, and they want to be called back on another case, so the way they process their investigation is of little use to the complainant,” Brooks said. This conflict creates a bias in favor of the agency, she said.
Patricia Randle, a supervisory attorney for AFGE’s Women and Fair Practices Department, said the use of canned responses and phone interviews also degrades the quality of the investigations because there is less opportunity to follow up with the complainant, benefiting the agency.
Complaints are more likely to be dismissed if investigative reports are not complete, she said. This is not just an issue with contractors but also in-house investigators, Randle noted.
But contractors believe their presence solves the problem of conflict of interest by removing the investigations from the hands of an agency official. As a third party, “we’re not concerned with the end result,” said Damon Hudson, business development director for U.S. Investigations Services (USIS), a Falls Church, Va., company. “What we drive is the unbiased [investigative] reports so the federal agency can understand the full picture and make the right choice in the case.”
Contractors say they are more efficient at completing the investigations because they have incentives built into their contracts that federal employees do not.
“Our contracts include penalties if we’re not able to meet the timeframes,” said Elizabeth Lytle, senior manager for Delany, Siegel, Zorn and Associates, an Arlington, Va., firm that handles EEO investigations for approximately 20 agencies.
Electronic tools also help companies process complaints more efficiently, said John Gonzalez, president of JDG Associates, a San Antonio contractor for the Transportation Security Administration, Bureau of Prisons and Social Security Administration. The company’s electronic tracking system accepts, processes and delivers reports to its customers, Gonzalez said. These paperless tools cut costs for both the company and the government, he said.
Another advantage of contractors: A company can add or subtract investigators from an agency’s casework as needed, saving the agency time and money should there be a case surge or slump, said Hudson of USIS.
The overall drop in processing time accompanies an overall drop in complaints filed by federal employees. In 2007, employees filed 16,363 complaints, 2.2 percent fewer complaints than they did in 2006, according to EEOC.
The drop in complaints indicates that cases are being settled in the early stages at the agency level, Ponce said. Agencies are more cautious about allowing cases to elevate to administrative hearings and court hearings because they are now responsible to foot their legal bills to fight discrimination cases out of the appropriated budget, he said.
But AFGE’s Martin said it might also show the effects of devaluing the role of EEO officials at federal agencies. Contracting out and short-staffing EEO offices “sends the message we’re not going to invest in people to do these investigations,” Martin said. This has a chilling effect on employee complaints because it leads them to believe their complaints are not important, she said.