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New Mexico Federal Contracts

Posted by Tamara

In a recent audit of a Frito-Lay plant in Dallas, Texas, the OFCCP (Office of Federal Contract Compliance Programs) discovered a pattern of adverse impact on the hiring of women.

The original investigation began in July of 2007 when OFCCP requested applications, affirmative action plans and hiring related documents for the period of 2006 through 2007. After review of these sets of documents revealed the hiring disparity, OFCCP requested more information through December 2007, and for the period of July 13, 2005 to December 31, 2005. Frito-Lay complied with the request.

When OCFFP requested even more information on November 10, 2009, however, Frito-Lay refused. The snack-food company’s attorneys argued that the agency was illegally extending its investigation at the Dallas facility beyond the scope of the original audit letter. OCFFP argued that the disparity in hiring processes gave it the right and the duty to investigate further, specifically for the period from January 1, 2008 and October 31, 2009.

The case went to court, and in what is now considered a landmark ruling, the judge for administrative law found in favor of Frito-Lay. The judge ruled that the original audit scheduling letter set limits on which documents the government agency would be allowed to review. So, the agency could not begin an investigation within a period, and then later request info for a period that occurred after the original investigation date.

The judge also noted that within comments regarding its regulations, the U.S. Department of Labor–OFCCP’s own agency–provided assurances that compliance reviews would not continue without end. Therefore, via its own regulations, the OFCCP had illegally extended the scope of their investigation.

A Washington, D. C. consultant, David Cohen of DCI Consulting Group, said, “If the OFCCP drags the case one, it can’t ask for more data.”

This is good news for New Mexico federal contractors and for federal contractors across the nations that do not wish to be subjected to never-ending audits.



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