It Doesn’t Pay to Dare The OFCCP’s Requests for Data!
Bank of America v. Solis Case 1:09-cv-02009-EGS (July 2, 2014) is the latest in a series of cases sending a strong message to federal contractors that challenging the OFCCP’s jurisdiction to request additional data during compliance evaluations, and to conduct on-site reviews is not likely a winning strategy.
This case started with a scheduling letter for a Desk Audit in 2004. While BOA provided all information requested in the Scheduling Letter, the OFCCP found pay disparities of 9 to 23 percent between males versus females in certain job groups and 5 to 23 percent between non-minorities versus minorities. BOA complied with the OFCCP’s request for additional compensation data, but after conducting a regression analysis, the OFCCP, being “unable to create groups of similarly situated employees”, requested to interview bank employees and examine documents during an on-site review at BOA’s North College Street facility in North Carolina. BOA balked, and the OFCCP filed an administrative complaint in 2006.
The newest developments occurred this month on July 2, 2014 with Emmet Sullivan, U.S. District Court Judge for the District of Columbia, adopting most of the findings contained in the magistrate judge’s December 2011 report and recommendation siding with the OFCCP. The magistrate judge’s findings, in turn, appear to have adopted those of the Administrative Law Judge and the Administrative Review Board. Bank of America’s main challenge seems to be that the OFCCP lacked probable cause to search additional records, in violation of the Fourth Amendment. While Judge Sullivan acknowledged BOA’s position, he found that BOA willingly consented to the Desk Audit, providing all documents requested by the OFCCP and submitted no proof that the scheduling letter or other practices were in fact coercive. Even in the absence of probable cause to begin a search or audit, a search is “nonetheless valid if conducted to voluntary, contemporaneous consent”. Judge Sullivan therefore did not need to address the question of whether the OFCCP’s initial selection of BOA’s North College Street facility for an initial Desk Audit violated the Fourth Amendment. Additionally, Judge Sullivan found that the raw data showing the pay discrepancies provided reasonable basis to request an on-site review. ( The ALJ and the magistrate did find a lack of probable cause with respect to the initial selection of BOA’s North College Street facility, suggesting that the outcome may well have been different had BOA not consented to the audit.)
BOA v Solis is not the first case in which the OFCCP has withstood challenges to its right to request additional data during audits or to conduct on-site reviews. The US District Court for the District of Columbia similarly held in United Space Alliance LLC v Solis (D.D.C. No 11-00746 11/14/11) that a NASA contractor had to comply with the OFCCP’s request for additional pay data. As the court stated, “Submission to such lawful investigations is the price of working as a federal contractor”. United Space Alliance has appealed that ruling to the D.C. Circuit Court of Appeals.
In OFCCP v. Frito Lay, Inc., (DOL ARB No 1—132 5/8/12) U.S. Department of Labor’s Administrative Review Board (ARB) ordered Frito Lay to comply with the OFCCP’s request for 2008 and 2009 data in connection with a 2007 Desk Audit that allegedly revealed statistically significant disparities between the hiring of women versus men. Frito Lay based its challenge primarily on the fact that the initial Desk Audit was for 2006 and 2007. Frito Lay argued that OFCCP did not have the jurisdiction to request data whose temporal scope exceeded that contained in the initial scheduling letter. The ARB, disagreed, holding:
“A statistical showing of two standard deviations has long been accepted as significant in
adverse impact analysis. It is also clear from this case precedent that a sustained duration
of a statistically significant disparity can further demonstrate discrimination. A request for two
subsequent years is consistent with a proper disparate impact analysis.”
We have seen the OFCCP’s enforcement agenda and activities become increasingly aggressive under the Obama Administration. These cases not only bear that out; they also show that the ARB and the courts are likely to support the OFCCP’s position. Now more than ever, contractors who wish to continue doing business with the federal government must ensure their compliance with all affirmative action laws and regulations —and perhaps even more importantly, be ready, willing and able to prove it on request!
For more information, contact Ahmed Younies at (714) 426-2918, ext. 1, or [email protected]