Subcontractor Audit Bumped Up by Oral Bias Allegations

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By Jay-Anne B. Casuga

A federal subcontractor on a large construction project in Washington must allow an on-site Labor Department audit sooner than usual based on oral discrimination complaints made at an agency outreach event, an administrative law judge ruled ( OFCCP v. Baker DC, LLC , Dep’t of Labor A.L.J., No. 2017-OFC-5, 6/8/17 ).

The June 8 ruling is concerning for government contractors given that the DOL’s Office of Federal Contract Compliance Programs reshuffled the order of its compliance reviews based on “informal, unverifiable allegations,” Alissa Horvitz, a management attorney with Roffman Horvitz in McLean, Va., told Bloomberg BNA. The agency enforces workplace nondiscrimination and affirmative action requirements on government contractors.

There was no formal, written complaint presented to the contractor to investigate or refute, Horvitz said June 9. “That’s troubling,” said the attorney, who isn’t involved in the OFCCP’s case against Baker DC LLC but has more than 20 years of experience practicing OFCCP law.

The judge in the case found no Fourth Amendment violations in the selection of Baker DC for an on-site audit. Baker DC, which performed work for a Department of Homeland Security construction project, was selected as part of a neutral administrative plan, the judge said.

As a subcontractor on a government-deemed “mega construction project,” Baker DC became eligible for audit once it worked on the project for three months. Although subcontractors are usually scheduled for audit sequentially, they may be “moved up the list” if the agency receives “credible complaints of discrimination.”

Oral Complaints Were ‘Credible,’ Judge Says

Baker DC argued that the race and sex discrimination allegations made at the OFCCP’s outreach event weren’t credible because no formal complaint was ever filed and the agency never verified the claims prior to the audit.

Disagreeing, the judge said the agency didn’t have to investigate the allegations to determine if they were true. The veracity of the claims would have been determined during an on-site audit, the judge said. Additionally, an OFCCP district director explained that he believed the allegations, which came from several sources, were “credible” because of their specificity.

Horvitz said another troubling aspect of the ruling is that it doesn’t define what constitutes a “credible” discrimination complaint that would trigger the OFCCP to re-prioritize the audit order of mega construction project subcontractors.

Representatives of the DOL and Baker DC didn’t immediately respond to Bloomberg BNA’s June 9 requests for comment.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

For More Information

The administrative complaint and ALJ's ruling are available at http://src.bna.com/pIH and http://src.bna.com/pIG.

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