Earlier this week the Department of Labor moved to remand Frito-Lay’s lawsuit seeking to block the production of employment data in connection with an OFCCP investigation into discrimination at its Dallas facility. Frito-Lay, Inc. v. Department of Labor, 3:12-cv-01747 (N.D. Tex. 2012). The resolution of this case may impact the scope of OFCCP’s authority to request documents from government contractors in compliance audits.
As has been described in a previous post, OFCCP issued a Scheduling Letter in July 2007 selecting Frito-Lay for a routine audit. The Letter requested hiring data from Frito-Lay for the 2006 affirmative action plan year and the first half of 2007. Frito-Lay provided that information. More than two years later, in November 2009, OFCCP asked Frito-Lay for additional employment data from January 2008 through October 2009, a period outside of the original Scheduling Letter, asserting that OFCCP had found a “statistically significant” disparity in the hiring rates of women at one of the company’s facilities.
Frito-Lay refused to supply the additional data, arguing that the agency’s request for the 2008 and 2009 data was time-barred under Title VII. OFCCP moved to compel Frito-Lay to provide the additional data. An administrative law judge affirmed Frito-Lay’s objection to producing the data, finding that OFCCP was only authorized to seek data for the period two years prior to the date on the initial Scheduling Letter. Two years later, however, the Administrative Review Board for DOL reversed the decision (OFCCP v. Frito-Lay, Inc., ARB Case No 2010-132), prompting Frito-Lay to file a complaint in federal court.
In its filing with the district court, the Department of Labor admits that the Administrative Review Board’s decision was based upon a factual error. OFCCP’s Administrative Complaint claimed a disparity in hiring rates between men and women for full-time positions. The Administrative Review Board relied on that claim in reaching its decision. OFCCP now admit admits that the potential disparity was based upon an initial review of both full-time and part-time positions. The Department of Labor has requested that the court remand the case to the Administrative Review Board to determine whether it would alter its previous order based upon the updated information.
Frito-Lay is expected to oppose the motion to remand and seek a decision on the merits from the federal district court. If the court does rule on the substance of the suit, that decision would shed light on the scope of OFCCP’s authority to request documents as part of compliance audits.