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

In July 2007, OFCCP issued a Scheduling Letter selecting Frito-Lay for a routine audit.  The Letter requested hiring data from Frito-Lay for the 2006 affirmative action plan year and the first half of 2007.  Frito-Lay provided that information.  More than two years later, in November 2009, OFCCP asked Frito-Lay for additional employment data from January 2008 through October 2009, a period outside of the original Scheduling Letter, asserting that OFCCP had found a “statistically significant” disparity in the hiring rates of women at one of the company’s facilities.