A federal district court has that the U.S. Department of Labor鈥檚 Office of Federal Contract Compliance Programs (OFCCP) violated the Fourth Amendment鈥檚 prohibition of unreasonable searches and seizures in an attempted audit of construction contractor Baker DC.
This is an important decision for the construction industry and OFCCP because it finds fault with a discretionary OFCCP construction industry audit protocol that the agency developed during the Obama Administration and was applying nationwide. Further, it:
- Confirms that OFCCP must get a warrant or its federal civil agency equivalent (i.e., evidence of a violation of an OFCCP rule or OFCCP-enforced statute, which was not alleged in this case) or have a 鈥渘eutral administrative plan鈥 to select contractors for audit before starting a construction audit (given OFCCP鈥檚 current and historic audit procedure to start construction audits with an on-site investigation); and
- Holds that OFCCP鈥檚 nationwide audit practice of taking contractors and subcontractors out of audit order upon receiving 鈥渃redible鈥 oral and/or written complaints of alleged unlawful discrimination violates the Fourth Amendment鈥檚 prohibition on unreasonable searches and seizures because it renders selection for audit decision no longer 鈥渘eutral.鈥
Again, without a warrant or evidence of a violation of one of the three statutes that OFCCP enforces, OFCCP must have a 鈥渘eutral鈥 administrative plan to select a construction contractor for audit. This is particularly important given the Office of Management and Budget鈥檚 restriction on OFCCP forbidding the agency from asking construction contractors questions and from seeking documents or information before commencing on-site investigations of construction contractors. (There is no 鈥淒esk Audit鈥 preceding OFCCP鈥檚 on-site investigation of construction contractors.) So, OFCCP may not gather information or documents from construction contractors before an on-site investigation and may not undertake an on-site investigation without a warrant or its equivalent.
This case also signals an important limit on OFCCP鈥檚 Expedited Hearing Procedures (EXP), which limit discovery (i.e., depositions and written interrogatories) when OFCCP designates the case for EXP. Depositions are vital, however, to discover evidence that OFCCP鈥檚 implementation of its asserted 鈥渁dministrative neutral plan鈥 was actually not neutral at all.
澳门六合彩开奖预测 has watched this case closely. The industry will now be watching to see what new audit protocols emerge from OFCCP for construction contractors. In fact, top leadership at OFCCP has already invited 澳门六合彩开奖预测 to discuss the development of such protocols, and preparations are underway.
Editor鈥檚 Note: This article is based on an article previously published by and reprinted with permission. Author , president and partner at Fox, Wang & Morgan P.C., represented Baker DC in the litigation.