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OFCCP’s Authority to Request Data For Time Periods After the Dates Contained in a Scheduling Letter

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OFCCP data requests

Ordinarily, when a federal contractor receives a scheduling letter from the Office of Federal Contractor Compliance Programs (OFCCP), the contractor must provide compliance data for the immediately preceding Affirmative Action Plan (AAP) year, and, if the contractor is six months or more into the current AAP year, it must also provide data for the first six months of the current AAP year. The validity of OFCCP’s exercise of authority to request data beyond such time periods has yet to be decided by the federal courts. For historical context, let’s review the varying decisions in a case that began in 2007 involving a compliance audit of Frito-Lay, Inc.

At the outset of this desk audit of Frito-Lay’s facility in Dallas, Texas, the contractor properly provided OFCCP with the data requested in the scheduling letter, dated July 13, 2007. Over a year later, OFCCP requested that Frito-Lay submit additional applicant and hiring data in order to analyze whether an allegedly statistically-significant impact against female job applicants continued after 2007. Frito-Lay responded that it would not provide OFCCP with data for the time period requested because it was beyond the temporal scope of the request in the scheduling letter.

Frito-Lay’s refusal resulted in an proceeding in which the administrative law judge (ALJ) ruled that the Federal Contractor Compliance Manual (FCCM) did not authorize OFCCP to request data during a desk audit for a time period after the date of the scheduling letter. On appeal, the Administrative Review Board (ARB) reversed the ALJ in an opinion issued May 8, 2012, holding that OFCCP did, in fact, have authority to request additional data for the purpose of determining whether a statistically significant disparity in hiring women, as compared to men, demonstrated disparate impact. The ARB specifically limited its holding to the facts of that case where “a deficiency motivated the request for more information.”

Later in 2012, OFCCP, to reinforce the ARB’s holding in the Frito-Lay decision, added language to the FCCM providing that “special circumstances or exceptions can exist” that warrant requests for additional data. As a result, OFCCP seemed to have relatively clear authority to request additional data after the date of the scheduling letter in circumstances where it found a statistically significant adverse disparity in data already submitted.

However, almost two years later, Frito-Lay challenged the ARB’s holding in favor of OFCCP before the United States District Court for the Northern District of Texas. On April 14, 2014, Frito-Lay and OFCCP asked the court to dismiss this case because they had reached a settlement whereby the 2007 compliance audit would be closed and a new one would be initiated. Accordingly, the court dismissed the case and vacated the previous ALJ and ARB decisions. OFCCP’s 2012 “special circumstances” additions to the FCCM, however, remain in place.

It is noteworthy that revisions made in 2014 to the regulations for the Vietnam Era Veterans Readjustment Assistance Act and Section 503 of the Rehabilitation Act of 1973 provided that “OFCCP may extend the temporal scope of the desk audit beyond that set forth in the scheduling letter if OFCCP deems it necessary to carry out its investigations of violations of this part.”

Thus, it is reasonable to conclude that OFCCP will exercise its authority to request additional data in E.O. 11246 audits if it finds statistically-significant disparities and will defend any contractor challenges to that authority as it did in the Frito-Lay case.

This article was prepared expressly for OutSolve, LLC by Paul M. Davis, Associate at Andrews Kurth.

Copyright © 2015. Andrews Kurth. This communication has been prepared by Andrews Kurth for informational purposes and does not constitute legal advice. A past performance or prior result is no guarantee of a similar future result in another case or matter. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Attorney Advertising.

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