Labor ruling adds to burden on federal contractors in audits

Lexology Ballard Spahr LLP Amy L. Bashore and Constantinos G. Panagopoulos USA May 15 2012 In a decision likely to add to the burden and length of audits for many federal contractors, the Administrative Review Board of the U.S. Department of Labor (ARB) has ordered Frito-Lay Inc. to produce an additional two years’ of data on its affirmative action plan (AAP) as part of an expanded investigation in an audit that began in 2007. The ARB’s Final Administrative Order, issued May 8, 2012, requires Frito-Lay to provide the Office of Federal Contract Compliance Programs with two years’ of AAP data post‑dating the Scheduling Letter in the Desk Audit. Full Story: http://www.lexology.com/library/detail.aspx?g=be89bf75-65f7-4a5a-9269-db02fa2cf5a3&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Other+top+stories&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2012-05-22&utm_term=

OFCCP May Request Data That Post-Dates Scheduling Letter, Appeal Board Rules

Costangy, Brooks and Smith LLP 5/16/2012 The Office of Federal Contract Compliance Programs has regulatory authority to request data beyond the date of a scheduling letter where the request is motivated by a "deficiency," such as discriminatory adverse impact, discovered during a compliance review. The ruling, in OFCCP v Frito-Lay, Inc., was made last week by the federal Administrative Review Board, which hears appeals in administrative cases involving the U.S. Department of Labor. ARB decisions can be appealed to the federal courts. Full Story: http://www.jdsupra.com/post/documentViewer.aspx?fid=909a0f70-e000-4f5e-b9b4-390eadbd5bc2

Frito-Lay Decision Sets Cap on Compliance Reviews

HR.BLR.Com April 05, 2011 Contractors everywhere sat up and took notice when an Administrative Law Judge (ALJ) recently decided to set a cap on the period of time that can be covered and for which data can be requested during an OFCCP compliance review. In Frito-Lay v. OFCCP, the ALJ held that the period for which data can be requested is limited by both 41 CFR Sec. 60-1.20(a)(1), and the Federal Contract Compliance Manual (FCCM), the “rules book” for OFCCP’s compliance officers. In the Frito-Lay case, OFCCP requested that the company provide workforce data for 2 years after the initial compliance review period after OFCCP identified adverse impact. The company refused, citing the OFCCP Scheduling Letter that only requests data for the previous AAP year and current AAP year (if more than 6 months into the current plan). In addition, Frito-Lay cited OFCCP’s regulations and the FCCM, which establish the time period for potential discrimination cases as only back 2 years from the date of the scheduling letter. Full Story: http://hr.blr.com/HR-news/Discrimination/Affirmative-Action/Frito-Lay-Decision-Sets-Cap-on-Compliance-Reviews-/

Administrative law judge rules in favor of company in OFCCP compliance review dispute

Lexology
Ford & Harrison LLP
Bennet Alsher, Linda Cavanna-Wilk, Jade M. Cobb and Karen Tyner
USA August 5 2010

USA August 5 2010
On July 23, 2010, Administrative Law Judge Larry W. Price issued a significant ruling that clearly establishes the temporal scope of an OFCCP compliance review during the desk audit phase.
Facts
On July 13, 2007, the OFCCP sent Frito-Lay a Scheduling Letter stating that its Dallas Baked Snack facility had been selected for a compliance review. In the letter, the OFCCP asked Frito-Lay to submit applicant and hire data for the 2006 Affirmative Action Plan year. It also asked for data for the first half of 2007 if Frito-Lay received the letter six months or more into its current AAP year. The Frito-Lay AAP was effective January 1, 2007; thus, the Company sent the OFCCP hire and applicant data for 2006 and the first six months of 2007. The OFCCP later requested data for the second half of 2007 and for data dating back to July 13, 2005. Frito-Lay complied with the OFCCP's request.
The OFCCP analyzed hiring at the Dallas Baked Snack facility and alleged the analysis showed an adverse impact in Frito-Lay's hiring of women from June 13, 2006 to December 31, 2007. The OFCCP then alleged it was necessary to determine whether the adverse impact continued after December 31, 2007. The OFCCP sent Frito-Lay a request on November 10, 2009, for applicant and hire data from January 1, 2008 to October 31, 2009. Frito-Lay refused to comply with the OFCCP's request and the OFCCP subsequently filed an administrative complaint.

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