On July 23, 2010, an Administrative Law Judge (ALJ), Larry W. Price, ruled against the Office of Federal Contract Compliance Programs (OFCCP) in favor of Frito-Lay. The decision can be found at: http://www.oalj.dol.gov/Decisions/ALJ/OFC/2010/OFCCP_-_TX_v_FRITO-LAY_INC_2010OFC00002_%28JUL_23_2010%29_105307_CADEC_SD.PDF.
As part of a routine compliance review of its Dallas, TX facility in 2007, Frito-Lay was required to submit applicant data for 2006 and the first six-months of 2007, since the company was more than six months into the AAP year. Frito-Lay complied when OFCCP later requested additional applicant data for the latter half of 2007 as well as data back to July 13, 2005. After conducting an analysis of the hiring data, the OFCCP alleged that a statistical analysis of the applicant data revealed adverse impact in the hiring of women during the time-frame of June 13, 2006 through December 31, 2007. The OFCCP then decided it needed to determine if the adverse impact had continued beyond December 31, 2007 and requested additional data for the time-frame of January 1, 2008 through October 31, 2009. When Frito-Lay refused, the OFCCP filed an administrative complaint.
The ALJ Price ultimately ruled in favor of the defendant, stating that Frito-Lay was only required to submit the documentation relevant to the review period which covered the time-frame of January 2006 through July 2007. He found nothing in the regulations that would require Frito-Lay to submit data for 2008 and 2009.
If this ruling stands, the OFCCP will no longer be able to obtain data that extends beyond the date a contractor received its Scheduling Letter. However, the OFCCP has fourteen days to appeal the ALJ decision with the Administrative Review Board (ARB).
Please contact us by calling (732) 446-2529 or sending us an e-mail at glennbarlett@gbcs.net if you are interested in discussing the Frito-Lay case.