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OFCCP Week in Review: July 2022 #2 | Direct Employers Association

Friday, July 1, 2022: USDOL Secretary used former Secretary Scalia’s Order 01-2020 to issue a final decision ordering Convergys to comply with OFCCP document requests

In an extraordinary move, Labor Secretary Martin Walsh wielded the power — bestowed on him by an order issued by Trump Labor Secretary Eugene Scalia — to intervene in the long run. OFCCP v Convergys Customer Management Group, Inc. (ARB No. 2022-0020, ALJ No. 2015-OFC-00002 to – 00008) and ordered the contractor to comply with the agency’s requests for documents. The secretary’s decision is dated July 1, but it was not posted on the DOL’s Office of Administrative Law Judges (OALJ) website until after the July 4 long weekend.

On February 15, 2022, Secretary Walsh filed a notice with the OALJ stating that he intended to intervene in the OFCCP v. Convergys administrative actions (ARB No. 2022-0020, ALJ No. 2015-OFC-00002 to -00008) after ARB eleven days earlier left an ALJ Recommended decision and order granting the OFCCP’s request for summary judgment. The ARB referred the case to determine whether the OFCCP’s selections of Convergys facilities for compliance assessments from 2013 were based on a neutral administrative plan.

ARB ruling found ALJ applied incorrect legal standard in Fourth Amendment analysis

Convergys, a Cincinnati, Ohio-based customer relationship management company, refused to provide the OFCCP with copies of its affirmative action programs and several other supporting documents during a compliance audit for many of its facilities. The contractor claimed that the OFCCP did not have sufficient constitutional grounds for the audits and sought an order finding that the OFCCP violated its Fourth Amendment right against unreasonable search and seizure. In December 2014, the OFCCP filed the first of multiple administrative actions against the employer to force it to comply with its requirements. Following a series of actions in the administrative arbitration process, ALJ Theodore W. Annos, following the ARB’s order to reconsider an earlier decision by Chief Administrative Law Judge Stephen R. Henley, ruled in favor of the agency. In a December 2021 ruling, ALJ Annos agreed with ALJ Henley’s earlier ruling, holding that the standard set out in the 1984 U.S. Supreme Court decision in Donovan vs. Lone Steer, Inc.. was appropriate and satisfied in law. In Donovanthe High Court said that “where an administrative body subpoenas books or corporate records, the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose and specific in direction so that compliance is not unreasonably burdensome”.

However, the ARB had concluded that ALJ Annos applied the incorrect legal standard to compliance reviews. He explained that “[a]n The OFCCP on-site audit is “virtually identical” to an administrative subpoena. An OFCCP on-site review, however, triggers the standard for a warrant or its equivalent. Yet, while the Fourth Amendment protections against administrative warrants and administrative subpoenas are different, “there is. . . overlap in the reasonableness requirements of the two,” acknowledged the ARB. Reasoning that “[a] The primary tenet of administrative law is that the agency is bound by its own regulations,” the ARB concluded that “[f]or search, including on-site verification, to be reasonable, the agency must, among other things, follow its own procedures.

The ARB stated that “OFCCP must apply neutral criteria when selecting a federal contractor’s facilities. . . submit to a compliance review including an on-site audit” and that “[w]If a compliance review was based on an administrative plan containing specific neutral criteria, it is a “factual determination”. selection of respondent’s facilities for compliance review. »

Intervening, Walsh reinstated the ALJ’s decision and ordered the contractor to comply

In a “Final Board Decision and OrderSecretary Walsh rescinded the February 4 order of the ARB and adopted the December 30, 2021 order of the ALJ. He said that while the ARB referred the case to the ALJ, it was intervening “in the interest of judicial economy and a desire to ensure compliance” to “ensure that the proper legal standard is applied”. He concluded that the Board had applied the incorrect Fourth Amendment standard and that the ALJ had applied the correct one. Agreeing with ALJ Annos that the applicable standard was met here, the secretary then ordered the contractor to comply with the agency’s document requests.

According to Walsh, the ARB’s interpretation of the applicable Fourth Amendment standard was inconsistent with the standard that federal courts apply to the type of records requests at issue. “While it is correct that the Fourth Amendment applies to both the onsite audit and the onsite portions of a compliance review, the Board ignored the distinction between specific Fourth Amendment standards that apply ‘apply to different stages of a compliance review,’ he wrote. The Council’s attempt to limit lone starapplication of the “subject matter of on-site audit” was not properly substantiated in the decision of the United States District Court for the District of Columbia in November 2011 in United Space Alliance, LLC vs. Solisconcluded the secretary.

With this action, Walsh exercised a controversial attribution of authority under an order from former DOL Secretary Scalia.

Secretary Walsh’s intervention appears to be the first exercise of this power in an OFCCP case under Secretary of Labor Order 01-2020, issued by Trump Secretary of Labor Eugene Scalia and which, among other things, gives the Secretary of Labor the power to intervene in ARB decisions. We discussed this command in the WIR in March 2020: Update February 21, 2020 History: New Boss in Town, Same as Old Boss: Scalia Secretary of Labor Order 01-2020 allows the Secretary of Labor to be the final arbiter of Department of Labor decisions. Work and A Procedurally Weird Finale to the Secretary of Labor’s ‘Direct Final Rule’ on Secretary’s Review of ARB Decisions.