OFCCP Argument for Expansive Scope of Desk Audit May be Weakened

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A federal trial court in Texas has entered an agreed order granting a joint motion for voluntary dismissal filed by the parties in Frito-Lay v. Department of Labor.  As discussed in our prior Alert, in Frito-Lay, the company challenged a decision by the Arbitration Review Board (ARB) upholding the authority of the Office of Federal Contract Compliance Programs (OFCCP) to extend the temporal scope of a desk audit beyond that of the scheduling letter.  The order granting the motion for voluntary dismissal states that the administrative proceedings before the DOL and ARB are vacated with prejudice to their re-institution, "including the Final Administrative Order of the Administrative Review Board" issued on May 8, 2012, and the Recommended Decision and Order of the ALJ issued on July 23, 2010.

Since the OFCCP relied on the ARB decision in Frito-Lay in expanding the temporal scope of compliance reviews in the final rules issued under VEVRAA and Section 503 of the Rehabilitation Act, contractors may now have grounds to argue that such an expansion is improper.

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DOL

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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