OFCCP’s failure to follow its scheduling process resulted in their defeat
On April 6, 2018, U.S. District Court Judge Susan Dlott ruled that OFCCP violated the Fourth Amendment rights of Baker DC LLC by fast-tracking an investigation into alleged mistreatment of African-American employees. Judge Dlott said that OFCCP’s decision to conduct the review before other subcontractors was a breach of constitutional protections against warrantless searches. Baker filed the lawsuit challenging the administrative law judge’s finding in favor of OFCCP in May 2017. The original dispute began in February 2015 when an OFCCP assistant district director received the oral complaints about Baker’s treatment of African-American employees. No formal complaints were ever filed but one of the complaints included specific allegations.
Baker DC LLC, a concrete contractor, worked on the “mega construction project” on St. Elizabeth’s West Campus in Washington, DC which allows the OFCCP to inspect and review contractor and subcontractor compliance on federal projects. The initial OFCCP review was scheduled for Grunley Construction Co. and then they scheduled imminent reviews for Baker and another subcontractor even though others had been working on the project for a longer period of time. Baker began its work on the project in November 2015 and reached its three-month date in January 2016. OFCCP began scheduling reviews in January 2016 and Baker was one of the first to be scheduled even though there were other subcontractors who had reached its three-month date before Baker. According to the court paper, Baltimore District Director, Tom Wells, noted that he did not speak to any of the people who made the complaints and did not take notes at the time of the complaints, but still moved the company up the list.
Judge Dlott indicated that OFCCP abandoned its neutral criteria of scheduling reviews for each subcontractor after three months on the job based on oral complaints of discrimination. The DOL filed the administrative complaint after Baker refused to cooperate with a document request and also barred OFCCP access to its work site.
On a separate claim for violation of the Paperwork Reduction Act , Judge Dlott found in favor of OFCCP stating that the record request was part of its attempted administrative compliance review and therefore, did not violate the Act.