The case began with an audit scheduling letter on July 13, 2007. During the desk audit phase Frito-Lay provided personnel activity data from July 13, 2005 through the end of 2007. Eventually the OFCCP requested personnel activity data for January 1, 2008 through October 31, 2009. When the Company refused, the OFCCP filed an administrative complaint. On July 23, 2010, the ALJ ruled in favor of Frito-Lay, interpreting the OFCCP regulations to allow the OFCCP to review company data in place only at the time of the scheduling letter. The 2012 ARB reversed the ALJ declaring that the OFCCP's request for 2008-2009 personnel activity data was "reasonable and consistent" with the Executive Order 11246 regulations. The ARB was motivated by the OFCCP's finding of alleged significant disparity in hiring as to women, which would grant the agency access to data after the date of the scheduling letter. Thus, according to the ARB, the ruling will not result in requests for data beyond the scheduling letter for all audits. Rather, the OFCCP's request for data beyond the scheduling letter is limited to those occasions in which the agency finds deficiencies. For Frito-Lay, the ARB contends that the OFCCP's finding of disparity as to the hiring of women was a deficiency which justified the agency's request for additional data.
The Company has appealed the ARB decision arguing that it was "arbitrary and capricious, an abuse of discretion and not in accordance with law, contrary to constitutional right, and without observance of procedure required by law, and not supported by substantial evidence." Frito-Lay is asking the court to adopt the conclusions of the ALJ especially the regulations and Federal Contract Compliance Manual (FCCM) sections, which state that the OFCCP may review personnel activity data for "the normal liability period" which is the "full two years preceding the date the contractor received the scheduling letter."
Some OFCCP officials are requesting personnel activity data after the date of the scheduling letter despite the ALJ ruling. With the ARB decision, contractors can expect to see more such OFCCP requests.
We will report on developments with this case.
If you have any questions regarding this case or other issues relating to OFCCP compliance evaluations, please contact the author of this Alert, Karen Tyner, ktyner@fordharrison.com, who is a member of Ford & Harrison's Affirmative Action Compliance and Plan Development practice group or the Ford & Harrison attorney with whom you usually work.
