On September 19, 2011, Administrative Law Judge (“ALJ”) Stephen Purcell held in OFCCP v. Nash Finch Co., ALJ Case No. 2011-OFC-00004, that OFCCP could undertake enforcement actions based on data the contractor voluntarily delivered to OFCCP that was initially outside of OFCCP’s jurisdiction
In this case, Nash Finch Company (“Nash Finch”) received a Scheduling Letter on October 26, 2006 to audit its Lumberton, North Carolina establishment. Nash Finch’s affirmative action plan year ran from May 1 to April 30. The Scheduling Letter requested transactional data (i.e., applicants, hires, promotions, and terminations) for the prior plan year and transactional data for the first six month of the current plan year (called the “update data”) if Nash Finch received the letter six months or more into its current plan year. At the time Nash Finch received the Scheduling Letter, it was five months and twenty-six days into its current plan year, and, therefore, Nash Finch was not obligated to provide OFCCP with the update data. Nevertheless, Nash Finch decided voluntarily to provide OFCCP with its update data in addition to its prior plan year transactional data.
From its review of the update data, OFCCP found evidence of discrimination against women in “Selector” positions at the Lumberton establishment and threatened to pursue enforcement proceedings against Nash Finch. Nash Finch claimed OFCCP lacked jurisdiction over the update data because: (1) OFCCP’s Federal Contract Compliance Manual (“FCCM”) and Scheduling Letter did not require it to produce update data because it was less than six months into its current plan year on the date it received OFCCP’s Scheduling Letter; and (2) OFCCP could not pursue an enforcement action against Nash Finch based on data to which OFCCP was not entitled. Nash Finch attempted to bolster its argument by pointing to OFCCP v. Frito-Lay, Inc., ALJ Case No. 2010-OFC-00002 (ALJ Larry W. Price July 23, 2010), decision in which the ALJ had not permitted OFCCP to obtain data past the date of OFCCP’s Scheduling Letter during a desk audit of a Frito-Lay establishment.
The ALJ rejected Nash Finch’s argument, noting that “Nash Finch’s assertion that OFCCP’s Complaint should be dismissed for lack of subject matter jurisdiction is easily disposed of.” He reasoned that, even though Nash Finch was not legally required to provide the update data, it voluntarily delivered it to OFCCP, thereby giving OFCCP authorization to review the data. Once OFCCP was lawfully in possession of the data, it had a duty to investigate and prosecute any evidence which it properly and legitimately believed revealed discrimination. In addition, the ALJ distinguished the Frito-Lay decision because, unlike Nash Finch, Frito-Lay had refused to voluntarily provide the data to OFCCP. The ALJ also found (in dicta) that the OFCCP was not required to follow its audit procedures described in the FCCM.
This case is an important reminder for contractors that they should not voluntarily deliver data to OFCCP that OFCCP does not have a legal right to access. When a contractor receives a Scheduling Letter, it should identify the date of receipt and carefully confirm whether it was received within the first six months of the current plan year. During the course of the desk audit, it would be advisable consistently to take the position that the audit is limited to the AAP for the current plan year and the personnel activity during the prior plan year.