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Robert Newland – Limits Set on OFCCP’s Compliance Reviews

A recent ruling by an Administrative Law Judge effectively capped the period that can be covered during an OFCCP compliance review, more specifically limiting the period for which the agency can request information.

In the case of Frito-Lay v. OFCCP, the ALJ ruled that the period for which data can be requested is limited not only by 41 CFR Ch. 60-1.20(a)(1), but also the Federal Contract Compliance Manual (FCCM), a document outlining the rules of engagement for OFCCP compliance officers.

The OFCCP had asked Frito-Lay to submit contractor data for the two years after the initial compliance review period after identifying adverse impact. Frito-Lay refused to provide the data, stating the OFCCP Scheduling Letter only requests data for the previous AAP year and current AAP year, if more than six months into the current Plan.

According to Frito-Lay, the OFCCP regulations and the FCCM establish this as a temporal scope of the compliance review, and that in the case of potential discrimination; the OFCCP can go back two years from the date of the Scheduling Letter.

OFCCP argued that the regulations at 41 CFR Ch. 60-1.20(a)(1) grants them authority to request this information and that Frito-Lay cannot rely on the language of the FCCM to support their position.

In his ruling, ALJ Price stated the following key considerations to his decision in favor of Frito-Lay:
1. While there are ongoing contractor obligations in the preservation of data, there’s nothing on the regulations that require contractor to provide this information outside the time frame of the compliance review period.
2. The fact that the OFCCP repeatedly refers to the FCCM as the place to address issues like this accentuates Frito-Lay’s contention that it is valid guideline to determine how to proceed with the OFCCP’s request.
3. The FCCM instructs compliance officers to complete compliance reviews within 60 days from the receipt of an AAP, thus the regulations did not envision requesting data for two whole years after the date of the scheduling letter.

What happens next?
The OFCCP has appealed the ALJ decision is already discussing how to make changes to the FCCM. Until, and if that happens, you now have availed yourself of a ruling that clearly sets the boundaries for the OFCCP.

As a former OFCCP Compliance Officer I can tell you that many times we pushed the envelope when it came to extending the review period. The ruling by the ALJ outs a clear stop to that.

If you need help with an OFCCP audit or to learn about our services and free webinars, please visit www.AffirmativeActionServices.com.

Posted by Robert Newland