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By Porter Wells
Bird’s Eye agreed to pay out $1 million to hundreds of female and Hispanic job seekers and workers, according to a settlement agreement posted to the Labor Department’s website Feb. 28.
December 2017 was a busy month for the Midwest region of the DOL’s Office of Federal Contract Compliance Programs. It negotiated five of the nine agreements posted so far in fiscal year 2018. Three of those five settlements, signed in December, were with food producers or distributors: Bird’s Eye Foods, Hilshire Brands, and US Foods.
The OFCCP’s audit of Bird’s Eye’s Darien, Wis., vegetable production facility covered a period between September 2010 and September 2012. The office said its data analysis showed Bird’s Eye discriminated against 404 qualified female applicants in hiring for seasonal laborer positions, against 146 qualified Hispanic employees in placement into full-time positions, and against 11 qualified female migrant employees in housing benefits.
The housing discrimination charge stands out among the hiring and placement discrimination allegations typical in OFCCP settlements. On-site barracks were available to male migrant workers but not to female migrant workers. That disparity “significantly limited employment opportunities” for those female workers, the settlement says.
Bird’s Eye agreed to construct barracks for female migrant workers in addition to the monetary settlement.
“We disagree with the allegations, but have chosen to settle the matter so we can focus on our current operations,” a spokesperson for Pinnacle Foods, Bird’s Eye’s parent company, told Bloomberg Law. Pinnacle is an equal employment opportunity and affirmative action employer, the spokesperson said, “committed to providing a workplace and an employment process that is free from any discrimination.”
Pinnacle Foods received more than $30 million from federal contracts with the U.S. Department of Agriculture between fiscal years 2014 and 2017, according to Bloomberg Government’s Contracts Intelligence Tool.
The Labor Department didn’t immediately respond to Bloomberg Law’s request for comment.
Investigating hiring discrimination alongside placement discrimination is becoming a trend in compliance audits, particularly in settlements out of the OFCCP’s Midwest region, says Alissa Horvitz of Roffman Horvitz in McLean, Va, an attorney focused on OFCCP law.
That means the favored group is being hired into lower-paying jobs. For example, Horvitz said, the allegation might read that female applicants were favored over male applicants in the employer’s hiring process. But even as the facility hired women at a higher rate, it hired them for lower-paying jobs and gave the higher-paying jobs to men. These are two separate violations, according to the OFCCP, which the Bird’s Eye settlement agreement illustrates.
Recordkeeping violations pepper the later pages of Bird’s Eye’s conciliation agreement, which isn’t uncommon in OFCCP settlements.
“Many of these hiring discrimination cases end in monetary settlements partly because the employer simply doesn’t have records to explain why it didn’t hire who it didn’t hire,” Horvitz told Bloomberg Law.
The OFCCP mailed 1,000 Corporate Scheduling Announcement Letters in early February, starting a new cycle of federal contractor facility evaluations. The courtesy letters give contractors a heads up to get their affirmative action and equal employment opportunity paperwork ready for review before an official scheduling letter arrives.
The OFCCP annually evaluates 1 percent to 2 percent of about 200,000 federal contractor facilities to enforce compliance with three federal equal employment opportunity laws: Executive Order 11,246, Section 503 of the Rehabilitation Act, and Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act.
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