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AGC Commends DOL Attention on Expanding Apprenticeships Urges Inclusion of Construction Industry to Help Solve Workforce Shortage
OCA’s national affiliate, AGC joined a group of organizations commending the U.S. Department of Labor’s (DOL) Task Force on Expanding Apprenticeships for its final report. In a letter addressed to DOL Secretary Acosta, the Jobs and Careers Coalition supported the core recommendation and urged the Department to move forward with the vision laid out by the task force. The coalition did however share several concerns with the task force’s recommendations on how to implement a new Industry Recognized Apprenticeship Program (IRAP) model. Two main concerns shared were the lack of inclusion of traditional industries with apprenticeships as possible pilot programs and not being able to consider participants as apprentices for the purpose of meeting Davis Bacon Act wage requirements, specific to the construction industry.
Court Finds OFCCP Construction Audit Program Violates Contractor’s Fourth Amendment Rights
A federal district court has ruled that the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) violated the Fourth Amendment’s 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 “neutral administrative plan” to select contractors for audit before starting a construction audit (given OFCCP’s current and historic audit procedure to start construction audits with an on-site investigation); and Holds that OFCCP’s nationwide audit practice of taking contractors and subcontractors out of audit order upon receiving “credible” oral and/or written complaints of alleged unlawful discrimination violates the Fourth Amendment’s prohibition on unreasonable searches and seizures because it renders selection for audit decision no longer “neutral.”
Again, without a warrant or evidence of a violation of one of the three statutes that OFCCP enforces, OFCCP must have a “neutral” administrative plan to select a construction contractor for audit. This is particularly important given the Office of Management and Budget’s 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 “Desk Audit” preceding OFCCP’s 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’s 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’s implementation of its asserted “administrative neutral plan” was actually not neutral at all.
OCA’s national affiliate, AGC, 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 AGC to discuss the development of such protocols, and preparations are underway. OCA will keep its members advised of any significant developments.
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