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

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.

In the Frito-Lay matter, the company provided data for 2005 through 2007 in response to a July 2007 OFCCP scheduling letter. During its investigation, the agency determined there was a statistically significant hiring disparity (3.26 standard deviations) against women for the period between June 13, 2006 and December 31, 2007 (which indicates Frito-Lay had apparently already provided 6 months of data beyond the date of the scheduling letter). In November 2009, the OFCCP asked Frito-Lay to submit data for 2008 and 2009 as well, so that the agency could analyze whether the statistical disparity continued past 2007. The company refused, arguing the request was beyond the scope of the scheduling letter.

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