On October 23, 2015, a Department of Labor (“DOL”) administrative law judge (“ALJ”) ordered a government contractor, Convergys Customer Management Group, Inc. (“Convergys”), to submit its affirmative action program along with supporting data to DOL’s Office of Federal Contract Compliance Programs (“OFCCP”) in connection with a desk audit. In so doing, the ALJ rejected Convergys’ argument that OFCCP’s information request violated the Fourth Amendment of the US Constitution.

In April and May of 2013, OFCCP sent Convergys several scheduling letters. The letters requested that Convergys submit its affirmative action program and supporting data for several of its facilities as part of an OFCCP desk audit. Convergys refused to comply with the letter requests. Instead, Convergys demanded that OFCCP provide evidence that it neutrally selected the facilities at issue, which it contended is required by the Fourth Amendment. OFCCP responded by filing seven (7) administrative complaints against Convergys.

On October 23, Chief ALJ Stephen R. Henley granted summary decision for OFCCP and ordered Convergys to provide all requested program information. Chief ALJ Henley explained that OFCCP orders are similar to administrative subpoenas (as opposed to administrative warrants, as argued by Convergys) and, as such, must be evaluated under the Supreme Court’s Lone Steer standard. That standard only “requires the order to be . . . sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.” Chief ALJ Henley found that these requirements were satisfied because OFCCP’s requests sought only information relevant to its compliance evaluations, described the information sought in detail, and only sought information that Convergys was “required by law to maintain and furnish.”

Chief ALJ Henley further explained that OFCCP’s requests were not akin to administrative warrants, as the requests were “limited to documents for off-site review” and did not seek “a nonconsensual entry into a non-public area of [Convergys]’s property.” As such, the less rigorous Fourth Amendment protections called for under Lone Steer applied.

Convergys has 14 days upon its receipt of the ALJ’s recommended decision to file an appeal with DOL’s Administrative Review Board.