Employment Law Blog

News, trends and analysis in employment law and HR

Nov 15, 2011

Affirmative Action: Don’t submit data if OFCCP isn’t entitled to it

Affirmative Action 
The Office of Federal Contract Compliance Programs (OFCCP) was entitled to take enforcement action on the basis of voluntarily submitted affirmative action data, a U.S. Department of Labor administrative law judge recently ruled.

The Office of Federal Contract Compliance Programs (OFCCP) was entitled to take enforcement action on the basis of voluntarily submitted affirmative action data, a U.S. Department of Labor administrative law judge recently ruled. The employer received an audit scheduling letter five months and 26 days into its affirmative action plan (AAP) year. When a federal contractor is selected for an audit more than six months into its AAP year, the OFCCP requires a supplemental report of personnel activities covering those six months, in addition to submitting the most recent AAP. The employer voluntarily submitted that supplemental data, but when the OFCCP initiated enforcement proceedings, alleging discrimination in the company’s hiring practices, the employer changed its mind and said the agency wasn’t entitled to the data. Unfortunately for the employer, the judge said the agency was entitled to audit any data the company submitted (OFCCP v. Nash Finch, DOL OALJ, Sept. 2011).

 

Tips: Don’t submit more data than the OFCCP asks for in a compliance evaluation. The agency continues to obtain significant settlements for back pay from employers, particularly for alleged discrimination in entry-level hiring. Recently the OFCCP announced in separate press releases that Caviness Beef Packers agreed to pay $600,000 and Tyson Fresh Meats agreed to pay over $2 million to disappointed applicants. Also, the agency recently proposed to significantly expand the scope of information it requests from employers at the beginning of every audit. Vigilant submitted comments opposing the expansion; we will inform members when the agency finalizes its decision.

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