Earlier this week the Department of Labor moved to remand Frito-Lay’s lawsuit seeking to block the production of employment data in connection with an OFCCP investigation into discrimination at its Dallas facility.  Frito-Lay, Inc. v. Department of Labor, 3:12-cv-01747 (N.D. Tex. 2012).  The resolution of this case may impact the scope of OFCCP’s authority to request documents from government contractors in compliance audits.

Medtronic, Inc. and Medtronic Interventional Vascular, Inc.

A Department of Labor Administrative Law Judge (“ALJ”) approved a consent decree on September 16, 2013 between the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) and Medtronic, Inc. (“Medtronic”) to settle claims of national origin discrimination in pay.

Research published by the Center for Corporate Equality (CCE), a Washington, D.C. research organization, reveals that the number of OFCCP audits resulting in a conciliation agreement has risen sharply under the Obama administration.

CCE compiled information from the Labor Department’s enforcement database as well as documents obtained through Freedom of Information.  Their research revealed that, during the Bush administration, only approximately 8 percent of all OFCCP audits ended in a conciliation agreement.  By contrast, the average during the Obama administration so far is close to 21 percent.  Findings of discrimination overall did not increase significantly during this period.  Between 2004 and 2008, the second term of Bush’s administration, 1.58 percent of all compliance evaluations resulted in a finding of discrimination, compared to 2.27 percent under the Obama administration so far—a rise of just 0.7 percent. 

On February 26, 2013, OFCCP announced the rescission of two guidance documents on pay discrimination issued in 2006: Interpreting Nondiscrimination Requirements of Executive Order 11246 With Respect to Systemic Compensation Discrimination (“Compensation Standards”) and Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance With Nondiscrimination Requirements of Executive Order 11246 With Respect to Systemic Compensation Discrimination (“Voluntary Guidelines”). The rescissions took effect on February 28, 2013.  OFCCP also issued Directive 307, Procedures for Reviewing Contractor Compensation Systems and Practices, (“Directive 307” or “Directive”), effective February 28, 2013, which describes the procedures that OFCCP will use when conducting compensation investigations.