On October 23, 2015, a Department of Labor (“DOL”) administrative law judge (“ALJ”) ordered a government contractor, Convergys Customer Management Group, Inc. (“Convergys”), to submit its affirmative action program along with supporting data to DOL’s Office of Federal Contract Compliance Programs (“OFCCP”) in connection with a desk audit. In so doing, the ALJ rejected Convergys’ argument that OFCCP’s information request violated the Fourth Amendment of the US Constitution.

In April and May of 2013, OFCCP sent Convergys several scheduling letters. The letters requested that Convergys submit its affirmative action program and supporting data for several of its facilities as part of an OFCCP desk audit. Convergys refused to comply with the letter requests. Instead, Convergys demanded that OFCCP provide evidence that it neutrally selected the facilities at issue, which it contended is required by the Fourth Amendment. OFCCP responded by filing seven (7) administrative complaints against Convergys.

On October 23, Chief ALJ Stephen R. Henley granted summary decision for OFCCP and ordered Convergys to provide all requested program information. Chief ALJ Henley explained that OFCCP orders are similar to administrative subpoenas (as opposed to administrative warrants, as argued by Convergys) and, as such, must be evaluated under the Supreme Court’s Lone Steer standard. That standard only “requires the order to be . . . sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.” Chief ALJ Henley found that these requirements were satisfied because OFCCP’s requests sought only information relevant to its compliance evaluations, described the information sought in detail, and only sought information that Convergys was “required by law to maintain and furnish.”

Chief ALJ Henley further explained that OFCCP’s requests were not akin to administrative warrants, as the requests were “limited to documents for off-site review” and did not seek “a nonconsensual entry into a non-public area of [Convergys]’s property.” As such, the less rigorous Fourth Amendment protections called for under Lone Steer applied.

Convergys has 14 days upon its receipt of the ALJ’s recommended decision to file an appeal with DOL’s Administrative Review Board.

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Photo of Guy Brenner Guy Brenner

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group, co-head of the Counseling, Training & Pay Equity Group and a member…

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group, co-head of the Counseling, Training & Pay Equity Group and a member of the Restrictive Covenants, Trade Secrets & Unfair Competition Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues, medical and disability leave matters, employee/independent contractor classification issues, and the investigation and litigation of whistleblower claims. He assists employers in negotiating and drafting executive agreements and employee mobility agreements, including non-competition, non-solicit and non-disclosure agreements, and also conducts and supervises internal investigations. He also regularly advises clients on pay equity matters, including privileged pay equity analyses.

Guy advises federal government contractors and subcontractors all aspects of Office of Federal Contract Compliance Programs (OFCCP) regulations and requirements, including preparing affirmative action plans, responding to desk audits, and managing on-site audits.

Guy is a former clerk to Judge Colleen Kollar-Kotelly of the US District Court of the District of Columbia.