Much attention regarding this case has revolved around the impact of the decision requiring Frito-Lay to submit data to the OFCCP for activity occurring after the date of the compliance evaluation scheduling letter. DOL's Administrative Review Board (ARB) found that "OFCCP had the discretion to request the AAP data covering activity occurring after the date of the scheduling letter under the specific circumstances of the case - specifically where OFCCP was conducting a disparate impact analysis under E.O. 11246 as amended, based on an objectively determined finding of a statistically significant disparity in the prior years' data."
There is another timing issue involved in this case that may be just as important: Frito-Lay's motion for issuance of a notice of case closure.
Frito-Lay asserted that the time in which the ARB had to issue a decision had passed; citing the provision in 41 CFR § 60-1.26(b)(2) that provides that the ARB issue a final order within one year of either the ALJ's recommended decision (in favor of Frito-Lay on July 23, 2010) or the submission of exceptions and responses to exceptions, whichever occurs first. Frito-Lay asserted that since the last filing was its October 1, 2010 response brief, the ARB had until October 1, 2011 to act.
The ARB found that failure to issue a final order within one year is not grounds for the dismissal of the appeal and that the time limit is discretionary, not jurisdictional. Consequently, the motion by Frito-Lay was denied.
This decision is important to remember in light of the fact that 41 CFR 60-1.12 Record Retention states that where a compliance evaluation has been initiated, personnel and employment records are relevant until the final disposition of the evaluation.
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