by Art Gutman Ph.D., Professor, Florida Institute of Technology
The facts in this case were reported in an Alert on 7/30/10. The case originated with a routine desk audit of a Dallas-based Frito Lay facility. Based on review of applicant flow data between June 2006 and May 2007, the OFFCP concluded there was adverse impact and requested additional data from January 1, 2008 through October 31, 2009. Frito Lay fought the request in an administrative complaint and won based on ALJ Larry W. Price’s ruling 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.”
More recently, Frito Lay moved for case closure based on language written in Section 60-1.26(b)(2) of the OFCCP regulations on “Enforcement Proceeding”, and the OFCCP has fought this motion with its own motion (dated 4/20/12). The language in question from Section 60-1.26(b)(2) reads as follows:
[A] Final Administrative Order shall be issued within a year from the date of the issuance of the recommended findings, conclusions and decision of the Administrative Law Judge, or the submission of any exceptions and responses to exceptions to such decision (if any), whichever is later.
According to Frito Lay, the key date is October 1, 2011, which is exactly a year after the final brief was filed in this case. In its counter motion, the OFCCP concedes that a “final agency decision should have been issued by October 1, 2011.” However, it argues that Frito Lay goes too far by its contention that “the case be formally closed and that the Administrative Law Judges decision be adopted.” The OFCCP’s rationale is that the referenced language in Section 60.1.26(b)(2) “does not specify a consequence for failure to comply with the one-year time period, and thus the one-year period is merely directional and not jurisdictional.” For its part, the OFCCP cites Section 60-30.37 on “Final Administrative Orders”, which does specify consequences. Accordingly:
After expiration of the time for filing exceptions, the Administrative Review Board, United States Department of Labor, shall issue a final Administrative order which shall be served on all parties. Unless the Administrative Review Board, United States Department of Labor, issues a final Administrative order within 30 days after the expiration of the time for filing exceptions, the Administrative Law Judge's recommended decision shall become a final Administrative order which shall become effective on the 31st day after expiration of the time for filing exceptions. Except as to specific time periods required in this subsection, 41 CFR 60–30.30 shall be applicable to this subsection.
Frankly, it’s not clear to me why and when the two sections apply. Also, if there are no consequences as in Section 60-1.26(b)(2), why then have a time period for response? I think we should ask Harold Busch … he would know. I did just that, and Harold said:
“The Agency has interpreted 60-1.26(b)(2) based on the regulations that (1) it must file and (2) what the Agency must do if they don't file if the ALJ decision is not final. I believe that the use of 60-30.35 is an attempt by the Agency to circumvent the ALJ decision regarding going beyond the initial timeframe of the review (2006-2007). OFCCP is basically saying it "found a substantive violation of the law" even absent the ability to go beyond 2007. It is therefore taking the position that it will not or does not have to close the review. The Agency is saying that there is no timeframe or limitation for them to pursue initial findings.”