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Washington Federal Contracts

Posted by Tamara

In what is considered a landmark case, the judge ruled that the OFCCP could not continue to ask for more and more information to audit. Instead, the original audit scheduling letter set limits on which documents the agency could review. Therefore, the audits performed by the OFCCP were not unlimited in scope.

The case involved the Dallas plant of Frito-Lay, which is headquartered in Dallas. In July, 2007, the OFCCP requested applications, affirmative action plans and other hiring related documents for 2006 through June of 2007. The OFCCP stated that these documents showed a hiring pattern with an adverse impact on women. The agency requested information through December of 2007, and from July 13, 2005 to December 31, 2005.

Frito-Lay complied with this request. Later, on November 10, 2009, when OFCCP requested even more data, naming the period of January 1, 2008 to October 31, 2009, Frito-Lay refused. The snack food company’s attorneys argued that by requesting this information OFCCP was illegally extending the scope of the information beyond the date of the original letter.

OFCCP replied that the adverse and disparate impact in hiring gave them the right, and the duty, to investigate the subsequent period.

The judge found in favor of Frito-Lay. Citing the comments on regulations by the U.S. Department of Labor, the administrative law judge noted that in these comments, the DOL provided assurances that audit would not continue forever. Therefore, the OFCCP, via its own agency’s regulations, could not extend the July 2007 investigation beyond that date.

In other words, the agency could not provide notice of audit on events that had not yet occurred.

David Cohen, a consultant for DCI Consulting Group in D.C., said, “If the OFCCP drags the case on, it can’t ask for more data.”

This is good news for federal contractors in Washington and throughout the nation.


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