by Art Gutman Ph.D., Professor, Florida Institute of Technology
On July 23, 2010, Administrative Law Judge Larry W. Price supported Frito-Lay on an issue that is critical to all DCI clients. The facts in this case are as follows. The OFCCP selected the Frito Lay Dallas Baked Snack facility for a compliance review and sent the standard scheduling letter. Item 10 of the scheduling letter specifically asks for information pertaining to applicants and hiring. More specifically, Item 10 requests:
Data on your employment activity (applicants, hires, promotions and terminations) for the preceding AAP year and, if you are six months or more into your current AAP year when you receive this listing, for the current AAP year.
Because Frito Lay was six months or more into its plan year, it sent the required 12 months (June of 2006 through May of 2007) of applicant flow data for the annual plan and the required six months of update data (June of 2007 through December of 2007). OFCCP conducted a desk audit review and identified “adverse impact” in the supplied applicant flow data. As a result, on November 10, 2009, OFCCP requested that Frito Lay supply more recent applicant and hire data from January 1, 2008 through October 31, 2009. Frito-Lay refused and the OFCCP filed an administrative complaint.
As stated in the ALJ Price’s ruling:
The issue before the Court is whether the temporal scope of the desk audit phase of a compliance review can be extended beyond the date that the contractor received its Scheduling Letter
Short and Sweet --- the answer is NO!!!. In the words of ALJ Price:
In summary, I find that the EO, regulations, case law and the FCCM contemplate that the temporal scope of the desk audit phase of a compliance review cannot be extended beyond the date that the contractor received its Scheduling Letter. Accordingly, Frito-Lay‟s Motion for Summary Decision should be granted.
Here’s wondering if they can re-open the Bank of America case.
Some potential implications of this significant ruling include the following: