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OFCCP and Law Firm Settle Compliance Review Matter by Agreeing to Debarment

Under the terms of the Consent Decree Shapiro DiCaro agreed to a debarment from future Federal contracts and subcontracts for a period of at least two years.

Overview of article.

On April 15, 2014, the U. S. Department of Labor ("DOL")'s Office of Administrative Law Judges issued an Order approving a Consent Decree ("Consent Decree") entered into between the DOL's Office of Federal Contract Compliance Programs ("OFCCP") and a Rochester, New York law firm, Shapiro, DiCaro & Barak, LLP ("Shapiro DiCaro" or "the law firm") to resolve a compliance evaluation data submission matter. Under the terms of the Consent Decree, which was approved by Administrative Law Judge Theresa C. Timlin, Shapiro DiCaro agreed to a debarment from future Federal contracts and subcontracts for a period of at least two years. (U.S. Department of Labor, Office of Federal Contract Compliance Programs v. Shapiro, DiCaro & Barak, LLP, Case No. 2014-OFC-0002, April 15, 2014).

Background of case.

According to the Consent Decree, in June 2012 the OFCCP sent a scheduling letter ("the Scheduling Letter") to the law firm stating that the agency had selected Shapiro DiCaro for a compliance review under Executive Order 11246 ("the Executive Order"), Section 503 of the Rehabilitation Act of 1973 ("the Rehabilitation Act") and the Vietnam Era Veterans' Readjustment Assistance Act of 1974 ("VEVRAA"). In the Scheduling Letter the OFCCP requested that, within 30 days from the date of the receipt of the letter, the law firm was to submit copies of an Executive Order Affirmative Action Program ("AAP"), a Rehabilitation Act/VEVRAA AAP, and supporting data itemized in an attachment to the Scheduling Letter. The OFCCP stated that both the AAPs and supporting data were needed to conduct the desk audit phase of the compliance review.

Then, according to the Consent Decree, the following occurred: In August 2012 the OFCCP submitted a Show Cause Notice to Shapiro DiCaro as to why an enforcement action should not be initiated due to the law firm's failure to submit the required employment activity data. In mid-September 2012 the law firm submitted an AAP and supporting data to the OFCCP in response to the Scheduling Letter. Later in September 2012 the OFCCP initiated a desk audit of Shapiro DiCaro's AAP and supporting data. In February 2013 the OFCCP issued an Amended Show Cause Notice to the law firm for violations the agency identified during the course of the desk audit. The law firm refused to provide additional documentation or information in response to the OFCCP's Amended Show Cause Notice and expressed that it did not intend to do so.

The Consent Decree further stated that the OFCCP made numerous status inquiries and follow-up requests for the law firm's employment activity data after the agency issued the Amended Show Cause Notice. The OFCCP stated that it attempted to secure voluntary compliance through means of "conciliation and persuasion," but despite these efforts, Shapiro DiCaro did not provide the documents or information requested by the OFCCP. In April 2013, the Federal contract was terminated by the parties.

Terms of the Consent Decree.

The Consent Decree approved on April 15, 2014, set forth a number of terms and conditions, including the following:

  • From the date that the Consent Decree is signed by the Administrative Law Judge ("the Effective Date of the Consent Decree"), Shapiro DiCaro agrees not to "bid for, knowingly enter into, knowingly perform work, or knowingly provide services necessary to any future Government contracts or subcontracts," and will be debarred from receiving future contracts or subcontracts or extensions or substantive modifications of existing contracts or subcontracts for a minimum period of two years and until the law firm is reinstated pursuant to the Consent Decree.
  • Notice of the debarment shall be printed in the Federal Register on or after the Effective Date of the Consent Decree, and shall include the Consent Decree's full terms.
  • The debarment period is for a minimum of two years from the Effective Date of the Consent Decree. After that time the law firm will continue to be forbidden from bidding on or entering into performing work necessary to a Federal contract or subcontract until Shapiro DiCaro: 1) requests reinstatement to Federal contractor status; and 2) satisfies the OFCCP Director that the law firm is in compliance with the Executive Order, Section 503, VEVRAA and their implementing regulations, and, in order to do so, Shapiro DiCaro must submit to a full compliance review.
  • Subject to the law firm's performance of its duties and obligations under the Consent Decree, all alleged violations set forth in the OFCCP's Administrative Complaint against Shapiro DiCaro shall be deemed fully resolved.
  • The parties agreed to settle the dispute to avoid the "further costs and burdens of litigation," and nothing in the Consent Decree shall be deemed an admission by the law firm of wrongdoing, liability or noncompliance.

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