Websites reveal FY 2016 OFCCP conciliation agreements not publicized in agency press releases

By Cynthia L. Hackerott

Not all OFCCP conciliation agreements led to agency press releases. The OFCCP’s “Class Member Locator” webpage and online “FOIA Reading Room” reveal several conciliation agreements entered into by the OFCCP in fiscal year (FY) 2016 regarding which the agency did not issue a corresponding press release. In all of the cases listed below, the contractor did not admit liability.

Class Member Locator. Currently, there are four conciliation agreements listed on the Class Member Locator webpage where no corresponding OFCCP press release was issued:

Alsco Inc. In June 2016, Alsco Inc, a linen and uniform services company, agreed to pay $7,758.00 to resolve OFCCP allegations that the contractor discriminated against 22 qualified women who were hired into lower paying “Operative” positions at its Charlotte, North Carolina facility. The period of alleged discrimination was April 1, 2012 through September 5, 2013. The employer also agreed to extend five job opportunities.

Murray Guard Inc. Also in June 2016, Murray Guard, Inc, a security services company, agreed to pay $200,000, and extend 16 job opportunities, to resolve allegations that it discriminated against 114 qualified women who applied, but were not hired, for “Security Officer” positions the contractor’s Atlanta, Georgia facility. The period of alleged discrimination was January l, 2013 through December 31, 2013.

Folgers Coffee Company. In September 2016, Folgers Coffee Company, a producer of retail-packaged coffee products, agreed in September 2016 to pay $200,000 to resolve OFCCP allegations that it discriminated against 677 blacks who applied for “Entry Level Technician” positions at its New Orleans, Louisiana facility but were not hired. The period of alleged discrimination was September 23, 2006 through September 22, 2008. The contractor also agreed to extend 21 job opportunities, and give each eligible class member hired a one-time payment of $500, less legal deductions required by law (such as federal, state and/or local taxes and FICA), in lieu of retroactive seniority. Accordingly, $10,500 was designated to be set aside from the total monetary settlement for this purpose.

Sears, Roebuck and Co. Sears, Roebuck and Co (Sears), agreed in September 2016 to pay $107,500 to resolve allegations that it discriminated against 1,064 qualified black applicants who were not hired for sales positions at its now-closed Mobile, Alabama facility. Sears also agreed to extend 12 job opportunities at other stores in the Mobile metropolitan area and revise its selection procedures. The period of alleged discrimination was May 1, 2010 to through April 30, 2011.

FOIA Reading Room. The OFCCP’s FOIA Reading Room includes links to financial conciliation agreements from FY 2010 to FY 2017. In addition to the agreements listed above, that the FOIA Reading Room contains the following FY 2016 conciliation agreements for which the OFCCP did not issue a corresponding press release:

Baker & Taylor, LLC. In December 2015, Baker & Taylor, LLC (formerly Baker & Taylor, Inc) agreed to pay $181,000 to settle claims that, from January 1, 2012 through June 30, 2013, the employer discriminated against 64 qualified male applicants as well as against six qualified white, and eleven qualified black, applicants (apparently in favor of Hispanics applicants) for “General Warehouse Associate” positions at the contractor’s facility in Bridgewater, New Jersey. Under the agreement, the contractor also promised to revise its selection procedures and offer 22 positions to eligible class members, including 12 to male applicants, three to whites applicants, and seven to black applicants.

Bechtel Marine Propulsion Corporation. Based on a complaint investigation, the OFCCP charged that Bechtel Marine Propulsion Corporation failed to engage in the interactive process to determine whether a worker’s disability (the specific impairment was redacted from the online document) could be reasonably accommodated in his position as a crane operator at the contractor’s Naval Reactors facility in Idaho Falls, Idaho. The agency further alleged the Bechtel failed to discuss, offer or place, this worker in any other positions for which he might have been qualified. In December 2015, the contractor agreed to pay over $38,000 to the complainant and to offer him a position, equivalent or greater in pay and equivalent in benefits and geographic location, for which he was qualified. The worker accepted the offer, which included back benefits and an additional lump sum amount of just under $22,000 in back pay. In addition, the company agreed to revise its reasonable accommodation policies and procedures.

C&S Wholesale Grocers, Inc. Also in December 2015, C&S Wholesale Grocers, Inc agreed to pay $85,000 to 100 eligible class members to settle OFCCP claims that it discriminated against 100 female applicants for full case “Selector” positions in the freezer, perishable, and grocery warehouses at the company’s facility in Greenville, South Carolina from January 1, 2006 through June 30, 2007. The employer further agreed to extended employment offers to 26 eligible class members. In addition, the contractor agreed to revise its hiring procedures, remedy other specified recordkeeping violations, and correct its failure to comply with VEVRAA job listing requirements, which it had already begun to do.

Schwan’s Global Supply Chain, Inc. Alleged hiring shortfalls based on race and gender in certain production positions at the Schwan’s Global Supply Chain, Inc facility in Deer Park, Texas were addressed in yet another December 2015 agreement. The OFCCP asserted that during the period from October 1, 2008 through September 30, 2010: (1) male, African-Americans, and white applicants were disadvantaged in the hiring of “Food Assembler” and “Packager Manual” positions and there were statistically significant shortfalls in the hiring of African-American and white applicants for the “Sanitation Associate” position. Additionally, the agency alleged that during the one-year period from October 1, 2008 through September 30, 2009, African Americans and whites were disadvantaged when applying for “Forklift Operator,” “Machine Operator,” and “Produce Supplier” positions. The OFCCP further found the contractor violated certain record retention requirements and failed to conduct an adverse impact analysis by racial and ethnic group in accordance the applicable regulations. Specifically, the agency determined that Schwan’s conducted an adverse impact analysis comparing non-minorities to minorities and males to females, but did not conduct adverse impact analyses on each racial and ethnic group that constituted at least two percent of the labor force in the relevant labor area or two percent of the applicable workforce. On top of a $310,000 monetary settlement, the contractor agreed to extend job offers to a specified number of eligible class members in the identified production positions as vacancies occur and to remedy to other regulatory violations cited.

Reynolds Consumer Products, LLC. In February 2016, Reynolds Consumer Products, LLC agreed to pay $86,000 to resolve OFCCP hiring discrimination claims resulting from a blanket policy implemented at a Louisville, Kentucky facility to reject candidates based on criminal history without an individualized assessment. This policy was used only by the predecessor employer at the plant and never by Reynolds and ended in 2008 when Reynolds acquired the plant. Under this policy, from the period of March 1, 2007 through February 28, 2008, black applicants were hired for “Production Worker” positions at a statistically significant lower rate than white applicants, leading to a shortfall of seven black hires. According to the agency, it thoroughly reviewed all the documents, data and information collected and did not find any legitimate non-discriminatory reasons that fully justified these disparities. The problematic policy was a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the production worker position. Moreover, the employer could not show that the policy was job related and consistent with business necessity, and could not produce a validity study for this test or any other evidence demonstrating its validity in accordance with the Uniform Guidelines on Employee Selection Procedures (UGESP). Reynolds agreed to ensure all stages of the selection process for production worker positions are in compliance with the UGESP. Because the policy of concern had an adverse impact on black applicants, Reynolds agreed to be proactive in its outreach efforts to avoid any chilling effect of the past policy, including developing relationships with and contacts at specified agencies to solicit, on an ongoing basis, referrals of black applicants for open positions in all of its job groups at the facility. Additionally, the employer agreed to extend job offers to seven qualified and otherwise eligible class members, as vacancies occur in the production worker job group.

Angelica Textile Services, Inc. According to the OFCCP, Angelica Textile Services Inc required female employees at its Fresno, California facility to submit written verification of pregnancy and terminated two employees based on pregnancy on August 18, 2010 and September 25, 2010. In addition, the agency alleged that the contractor discriminated against employees with pregnancy-related disabilities and violated specified recordkeeping requirements. The OFCCP further alleged that from June 1, 2009 to March 26, 2011, Angelica failed to meet outreach and recruitment regulatory requirements regarding workers with disabilities and covered veterans. In March 2016, the contractor agreed to pay over $65,000 to the impacted women and to modify specified policies.

Coca Cola Bottling Co. In June 2016, the Coca Cola Bottling Co settled OFCCP allegations based on the complaints of two employees at its Charlotte, North Carolina facility who were hired pursuant to September 20, 2010 consent decree. Stating that each of the complainants participated in protected activity as a class member under the consent decree, the OFCCP asserted that, in retaliation for this protected activity, the contractor administered its training and disciplinary processes differently for one of the complainants compared to similarly situated not hired pursuant to the consent decree, and that this allegedly different treatment resulted in termination. The agency also found that the company failed to provide this employee the seniority granted by the consent decree. Coca Cola agreed to pay over $75,300 in back pay and interest to this worker. The OFCCP also claimed that the company retaliated against, failed to provide seniority to, and failed to hire or promote into a full-time position the other complainant. Coca Cola agreed to pay $11,000 in back pay and interest to that worker, and extend to him a bona fide, written offer of full-time employment into a position comparable in pay and opportunity to the full-time “Merchandiser” position. Further, the contractor agreed to revise its EEO policies and practices, train the relevant decisionmakers, and remedy alleged recordkeeping violations.

Pacific Seafood. Also in June 2016, Pacific Seafood agreed to pay over $82,000 to settle OFCCP allegations that, for specified laborer positions at its Clackamas, Oregon facility, the company hired Hispanic applicants at a rate significantly greater than their white, black, Asian, and Native American/Alaskan Native counterparts who were equally or more qualified. The period of alleged discrimination was from May 1, 2011 through April 30, 2013. In addition, the company agreed that vacancies not filled pursuant to the company’s recall or other rehire procedures, would be offered to eligible class members. The agreement states that the company no longer had any federal contracts as of the date of the agreement, and that, therefore, the provisions of the agreement requiring the company to remedy specified recordkeeping and retention violations applied only to the extent the company is a covered contractor or subcontractor under Executive Order 11246.

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