Federal contractors, open a bag of  Frito-Lays in honor of their win against the OFCCP.

The facts are as follows:  On July 13, 2007, the OFCCP sent Frito-Lay a Scheduling Letter to its Dallas Baked Snack facility.  As many of you know Item 10 of the Scheduling Letter requests “Data on your employment activity (applicants, hires, promotions and terminations) for the preceding AAP year and, if you are six months or more into your current AAP year when you receive this listing, for the current AAP year.” 

Frito-Lay submitted all requested information including the first six months data of the current AAP year since the date of the Scheduling Letter was more than six months into the current AAP year.  OFCCP conducted their desk audit review and discovered adverse impact in hiring of females.  Over a year later, on November 10, 2009, in an effort to determine if adverse impact went beyond the dates of the data submitted, OFCCP requested Frito-Lay submit 2008 and 2009 applicant and hire data. 

The issue in this case “is whether the temporal scope of the desk audit phase of a compliance review can be extended beyond the date that the contractor received its Scheduling Letter.”  The answer is NO.

The Administrative Law Judge said “Nothing in OFCCP’s regulations, comments to its regulations, or the FCCM suggest that OFCCP intended to extend audits forward past the date that the contractor received the initial desk audit Scheduling Letter.  Indeed, everything in the regulations and interpretive guidance on regulations suggests that compliance reviews look backwards from the date of the review was initiated.”

My comments:

1. This case can provide peace of mind that if you are going through a long drawn out desk audit and the OFCCP requests additional data outside the timeframe of the scheduling letter, you are not required to provide it.
2. Remember this is only at the desk audit stage, once the OFCCP comes on-site this decision is no longer applicable and OFCCP will argue for greater access to your data.
3. Will this ruling mean more on-site audits if companies refuse to provide the additional information?
4. Before denying the request for additional data from your Compliance Officer review the facts of your case with a consultant or attorney to help you decide how to proceed.

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BIOGRAPHY

Ms. Carla Irwin is an affirmative action consultant who specializes in affirmative action strategy, development, implementation, audit support, outreach and training.

After completing law school Ms. Irwin began her corporate career in affirmative action at Zurich North America as an Affirmative Action Compliance Manager.  While at Zurich, Ms. Irwin managed Zurich’s Affirmative Action Programs and company-wide affirmative action training.

From there, Ms. Irwin was hired by Office Max as the Director of EEO & Diversity.  During her tenure at OfficeMax, Ms. Irwin was responsible for developing and implementing nearly 1,000 AAPs, managing OFCCP audits, conducting training, diversity initiatives and oversight of the applicant tracking system (ATS) for all Office Max locations.

In 2006, Ms. Irwin realized that her education and experience, both as a lawyer and corporate executive, could help other companies identify and capitalize on opportunities to integrate comprehensive AAPs into their existing company structures.  In October that year, Ms. Irwin established Carla Irwin & Associates, Inc.

Carla Irwin & Associates, Inc. is focused on helping companies design, develop and implement affirmative action programs.  Ms. Irwin and her team review all aspects of the business environment to provide a customized solution for compliance.  Her practice supports clients across a broad span of industries from retail and gaming to manufacturing and technology.

Ms. Irwin holds a BA degree from Southern Illinois University and JD from DePaul University College of Law.

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