On May 8 2012, the Department of Labor's Administrative Review Board (ARB) ruled in favor of the Department of Labor's Office of Federal Contract Compliance Programs and ordered Frito Lay to comply with a request for AAP data covering activity occurring after the date their Compliance Review Scheduling Letter was received.
This ruling reverses a recommended decision by the Department of Labor's Administrative Law Judges (ALJ) that the temporal scope of the desk audit phase of a compliance review cannot be extended beyond the date that the contractor received its Scheduling Letter.
In it's ruling, the Administrative Review board clarifies that the focus is narrow in the Frito Lay case and they "do not address whether OFCCP has the ability to ask for post-Scheduling Letter data in all desk audits or where OFCCP has not objectively identified a concern about compliance."
Highlights of the Case:
July 13, 2007 -
OFCCP sent Frito-Lay a Scheduling Letter requesting that Frito-Lay submit data for the 2006 affirmative action plan year and for the first half of 2007. Subsequently, OFCCP requested data for the remainder of 2007 and back to July 13, 2005. Frito-Lay supplied OFCCP with this requested data.
Relying on the information Frito-Lay provided, OFCCP conducted an analysis of hiring at the Dallas facility. OFCCP analysis revealed an adverse impact in hiring of females for the period June 13, 2006 through December 31, 2007. Based on this finding, OFCCP decided that it needed to determine if the adverse impact continued beyond December 31, 2007.
November 10, 2009 -
OFCCP requested that Frito-Lay submit additional data for applicants and hires for the period January 1, 2008, through October31, 2009 (the “2008 and 2009 data”). Frito-Lay refused to provide the 2008 and 2009 data.
April 28, 2010 -
The OFCCP filed a complaint under the expedited procedures set forth at 41 C.F.R. § 60-30.31.
May 21, 2010 -
Frito-Lay answered that OFCCP has impermissibly attempted to extend the timeframe for beyond the July 2007 date that the compliance review was initiated. Frito-Lay argued that OFCCP‟s regulatory framework, as reflected in the regulations, the comments accompanying the publication of the regulations and the Federal Contract Compliance Manual (“FCCM”), establishes a temporal scope of a compliance review (concluding on the date the Scheduling Letter is received).
July 23, 2010
The ALJ agreed with Frito-Lay and recommended dismissal of OFCCP’s complaint, focusing mostly on the nature of a desk audit and drawing inferences from OFCCP’s Federal Contract Compliance Manual (FCCM). Essentially, the ALJ concluded that there was a temporal scope to the 2007 Desk Audit that precluded OFCCP from requesting 2008 and 2009 AAP data. May 8, 2012
The ARB reversed the decision of the ALJ, finding that OFCCP’s request for 2008 and 2009 AAP data was narrow and motivated by the deficiency discovered during the 2007 Desk Audit; a request for two subsequent years is consistent with a proper disparate impact analysis. Further the ALJ found that the FCCM provides internal guidance to OFCCP, and that it does not provide due process rights in the public, except in unusual circumstances.
Read the ALJ recommended decision
Read the ARB final administrative order
