by Art Gutman Ph.D., Professor, Florida Institute of Technology
On June 20, 2012, USSA filed an administrative complaint (OFC Case No. 2012-OFC-4) against the OFCCP on grounds that it violated its 4th Amendment rights in engaging in unreasonable search and seizure by selecting 21 of its establishments for audits in the span of less than a year, and that it did so without reference to a “neutral administrative plan” or evidence of any current violation. Indeed, USSA has never been cited for violations in any prior audit. According to the complaint, one third of USSA’s approximately 29,000 workforce is currently subject to OFCCP audits. Interestingly, USSA currently has only $150,000 in federal contract money. In short, there are lots of unexplained audits over a short period of time for a company with a small amount of federal contract money and with no history of current or prior violations. This could get interesting.
On 9/17/12, ALJ Stephen L. Purcell dismissed the complaint on grounds that the OFCCP lacks “subject matter jurisdiction.” Purcell said that the DOL’s Office of ALJs has subject matter jurisdiction over “administrative disputes” with respect to complaints filed under Executive Order 11246 in accordance with implementing regulations at 41 C.F.R. § 60-30.5. Purcell ruled that these regulations “expressly limits authorization to institute such proceedings to ‘the Solicitor of Labor, Associate Solicitor for Labor Relations and Civil Rights Regional Solicitors and Regional Attorney upon referral” from the OFCCP. In plain English, that means 4th Amendment challenges belong in federal court, at lest in the opinion of ALF Purcell. It’s a little more complicated than that, but that is the gist of it.
Our hunch is that this will now go directly to federal court.