On May 8, 2012, the Administrative Review Board (ARB) reversed the Administrative Law Judge (ALJ) decision in the Frito-Lay case. The ARB’s decision can be found at: http://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/OFC/10_132.OFCP.PDF.
As part of a routine compliance review in 2007, Frito-Lay was required to submit to the OFCCP applicant data for 2006 and the first half of 2007. Later additional data, including the rest of 2007 and as far back as July 2005 was requested. Frito-Lay complied and sent the requested data. The OFCCP then alleged that a statistical analysis revealed adverse impact against the hiring of women and requested additional data from January 1, 2008 to October 31, 2009 to see if it had continued. Frito-Lay refused and the OFCCP filed an administrative complaint.
The initial decision of ALJ Larry W. Price in July 2010 was that Frito-Lay was only required to submit data relevant to the review period which in this case covered January 2006 through July 2007.
On May 8, 2012 however, when the Office of Federal Contract Compliance Programs (OFCCP) appealed the ALJ decision with the Administrative Review Board (ARB), the ARB unanimously disagreed and reversed the ALJ decision. The ARB found that OFCCP had the discretion to request AAP data covering activity occurring after the date of the Scheduling Letter. Thereby, ordering Frito-Lay to comply with the request for the 2008 and 2009 data.
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