United States Department of Labor Office of Administrative Law Judges Law
Library
UNITED STATES DEPARTMENT OF LABOR *
OFFICE OF THE SOLICITOR * CIVIL RIGHTS DIVISION
INDEX TO ADMINISTRATIVE DECISIONS UNDER SECTION
503 OF THE REHABILITATION ACT OF 1973
TOPIC 60: COVERAGE
NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS
DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR
INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES,
AND WAS LAST REVISED IN NOVEMBER, 1996.
A Federal contractor's affirmative action clause obligations are not limited solely to Federal
contract jobs but extend to any position for any operations. OFCCP v. E.E. Black,
Ltd., 77- OFCCP-7R, Assistant Secretary for Employment Standards Dec. and Order,
February 26, 1979, slip op. at 18, aff'd, E.E. Black v. Marshall, 497 F.
Supp. 1088 (D. Hi. 1980), E. E. Black v. Donovan, 26 FEP Cases 1183 (D. Hi.
1981).
The regulation at 41 CFR 60-741.3 which lists types of contracts that are covered under the
Act is not exhaustive. OFCCP v. Graves Truck Line, Inc., 80-OFCCP-2, ALJ
Rec. Dec., April 16, 1980, slip op. at 2, dismissed, ALJ Order of Dismissal, November 4,
1981.
To determine if there is a relationship between the Government and a contractor, look at the
trade realities of conducting business in the market for the goods or services the Government is
procuring; the nature and extent of the business which exists between the Government and the
contractor; and in the context of each case whether the contractor has a significant on-going
commercial relationship with the Government. Id.
It is possible for the Government to prove coverage by aggregating bills of lading.
Id. at 3.
Even if a particular contract has no connection with any of the contractor's Federal contracts,
it is a covered contract (if over $2,500) unless there is a specific waiver. E.E. Black, Ltd.
v. Marshall, 497 F. Supp. 1088, 1092 (D. Hi. 1980), reconsiderationdenied, E. E. Black v. Donovan, 26 FEP Cases 1183 (D. Hi. 1981).
For purposes of administrative enforcement proceedings, the validity of the waiver provision
in former 20 CFR 741.25(a)(5) must be assumed. OFCCP v. Western Electric
Co., 8O-OFCCP-29, Deputy Under Secretary for Employment Standards Remand Decision,
April 24, 1985, slip op. at 13, reversingandremanding, ALJ Rec. Dec.,
March 4, 1981.
The value of the contract with the Government is the crucial matter, not how it is divided
among those who enter into the contract with the Government. OFCCP v. Southern
PacificTransportation Co., 79-OFC-10A, ALJ Rec. Dec., November 9, 1982, slip
op. at 30; remanded on other grounds, Acting Assistant Secretary for Employment
Standards Decision and Order of Remand, February 24, 1994; ConsentOrder,
October 13, 1995.
Legislative intent of the Act was to exclude small, occasional contracts because of
administrative costs of applying the statute to minimal, essentially trivial, business relationships,
but to include substantial business relationships in the applicability of the Act. Id. at 31;
remanded on other grounds, Acting Assistant Secretary for Employment Standards
Decision and Order of Remand, February 24, 1994; ConsentOrder, October 13,
1995.
The realistic business relationship, rather than any particular contract document for a small
part of that relationship is what needs to exceed $2500 or $50,000. Id.; remanded on
other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of
Remand, February 24, 1994; ConsentOrder, October 13, 1995.
The Secretary of Labor could impose conditions beyond those authorized by Executive
Order
11758 on contracts to be negotiated by his own department but his authority over contracts made
by other departments would appear not to exceed the specific delegation of the Executive Order.
Id. at 34; remanded on other grounds, Acting Assistant Secretary for
Employment Standards Decision and Order of Remand, February 24, 1994; ConsentOrder, October 13, 1995.
The statute does not provide for any express administrative exemptions for the railroad, air,
bus or truck industries. Id. at 64; remanded on other grounds, Acting Assistant
Secretary for Employment Standards Decision and Order of Remand, February 24, 1994;
ConsentOrder, October 13, 1995.
Bills of lading supply coverage. Id. at 26; remanded on other grounds,
Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February
24, 1994; ConsentOrder, October 13, 1995.
For the purposes of coverage under the Act, it does not matter whether the Government is
the purchaser or seller. OFCCP v. Ozark Air Lines, Inc., 80-OFCCP-24, ALJ
Rec. Dec. and Order, December 7, 1982, slip op. at 8, aff'd, Deputy Under Secretary for
Employment Standards, June 30, 1986, slip op. at 4-5.
Coverage was not established in this case for certain years because the only proof consisted
of
indirect evidence by way of general testimony and a showing that the railroad has a program in
place designed to comply with the Act. OFCCP v. Missouri Pacific Railroad,
81-OFCCP-8, ALJ Rec. Dec. and Order, March 17, 1983, slip op. at 2, aff'd, Deputy
Under
Secretary for Employment Standards, August 12, 1985.
A contractor with a Government contract of over $2500 at any facility must utilize the
waiver
provision in 41 CFR 60-741.3 (a)(5) in order to avoid the Act's affirmative action obligations at
any of its other facilities and on all work done by that contractor on contracts of over $2500.
OFCCP v. W.S. Hatch Trucking Co., 84-OFCCP-15, ALJ Order Denying
Defendant's Motion for Summary Judgment, June 5, 1986, slip op. at 4.
The waiver provision in 41 CFR 60-741.3(a)(5) applies to contracts of over $2500 as well as
contracts of over $50,000. Id. at 4-5.
Requiring a contractor to be an affirmative action employer at its Government contract
facility, and not at its nongovernment contract facilities, would result in disparate treatment of
handicapped persons. Id.
An employer is a subcontractor subject to the requirements of 41 CFR 60-741.2 when the
type of service it provides is necessary to the contractor's performance of its agreement with the
Government, even though this specific subcontractor's service may not be necessary.
OFCCP v. Monongahela Railroad Co., 85-OFC-2 ALJ Rec. Dec. Granting
Plaintiff's Motion for Summary Judgment, April 2, 1986, slip op. at 4, aff'd, Deputy
Under
Secretary for Employment Standards, March 11, 1987.
The contractor was covered by the requirements of the affirmative action program
regulations
by virtue of its blanket purchase agreement with the Defense Department, which was regarded as
a contract for purposes of Section 503. OFCCP v. Bruce Church, Inc.,
87-OFC-7, ALJ Rec. Dec. and Order, May 18, 1987, aff'd, Secretary's Final Decision and
Order, June 30, 1987.
Defendant, a bulk power supplier, is covered under the provisions of Section 503 because the
defendant is a corporate sibling to a government contractor and operates to supply electricity to
service companies which in turn supply electricity to the government. To allow a government
contractor to elude coverage by maintaining a subsidiary supplier would be inconsistent with
Section 503's purpose. OFCCP v. Texas Utilities Generating Company,
85-OFC-13, ALJ Rec. Dec. and Order, March 2, 1988, slip op. at 3-4, remandedonothergrounds, Assistant Secretary for Employment Standards
Decision and Order of Remand, August 25, 1994; ConsentDecree, April 15,
1996.
Defendant is estopped from contending post trial (after conceding coverage at trial) that the
OFCCP's case fails without proof that each complainant could have or would have been involved
in the actual performance of government contracts if employed by defendant. OFCCP v.
Yellow Freight System, Inc., 79-OFCCP-7, ALJ Rec. Dec. on Remand, August 26, 1988,
slip op. at 8, remanded, Special Assistant to the Assistant Secretary for Employment
Standards, August 24, 1992; ConsentDecree, February 2, 1993.
Given that defendant concedes that it has had qualifying contracts during all of the relevant
years, the regulation at 41 CFR 60-741.3(a)(5) compels the conclusion that (absent a waiver
requested by defendant and granted by the Director) all of defendant's facilities are covered,
including those at which complainants would have been employed. Id.; ConsentDecree, February 2, 1993.
Under 41 CFR 60-741.2(a)(5), all of a contractor's facilities are covered by section 503
unless
the contractor requests a waiver for a specific plant. Since the defendant did not request a waiver
for the plant at issue, OFCCP has jurisdiction over that plant. OFCCP v. PPG
Industries, Inc., 86-OFC-9, Deputy Assistant Secretary for Employment Standards Final
Dec.
and Remand Order on Remedy, January 9, 1989, aff'g, ALJ Rec. Dec., May 17, 1988,
slip
op. at 17, dismissedonAPAreview, PPG v. United
States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C.
Cir. 1995); Consent Decree, September 24, 1996.
The North Carolina statute and regulations establishing and governing the University of
North
Carolina (UNC) make it clear that the UNC is a single agency of which UNC-A and NCSA are
only parts. It is not necessary, therefore, to make a finding of privity of contract to establish
coverage. OFCCP v. University of North Carolina, 84-OFC-20, Acting
Secretary
of Labor Dec. and Final Administrative Order, January 23, 1989, slip op. at 6, aff'd,
Board of Governors of the University of North Carolina v. United States Department
of Labor, 917 F. 2d 812 (4th Cir. 1990), cert. denied, 500 U.S. 916 (1991).
The rationale of the Court's decision in Pennhurst State School and Hospital v.
Halderman, 451 U.S. 1 (1981), is not applicable to Section 503 coverage of the
University of North Carolina constituent institutions, because the equal opportunity clause was
presumably included in each contract required to include it and, if it was not, the clause would
have been incorporated by operation of law. OFCCP v. University of North
Carolina, 84-OFC-20, Acting Secretary of Labor Dec. and Final Administrative Order,
January 23, 1989, slip op. at 7-8, aff'd, Board of Governors of the University of North
Carolina v. United States Department of Labor, 917 F. 2d 812 (4th Cir. 1990),
cert. denied, 500 U.S. 916 (1991).
The exemption in 41 CFR 60-1.5(a)(4) does not cover the constituent campuses of UNC
because they are not separate state agencies. The exemption applies only to agencies separate
and
distinct from the agency holding the contract. Id. at 8, aff'd, Board of
Governors of the University of North Carolina v. United States Department of
Labor,
917 F. 2d 812 (4th Cir. 1990), cert. denied, 500 U.S. 916 (1991).
Under North Carolina General Statutes Chapter 116, Article 1 and Student Bar v.
Byrd, the University of North Carolina at Asheville and the North Carolina School of the
Arts are not separate agencies and are not entitled to the exemption in 41 CFR 60-1.5(a)(4),
60-250.3(a)(4) and 60-741.3(a)(4). Id. at 11, aff'd, Board of Governors of the
University of North Carolina v. United States Department of Labor, 917 F. 2d 812
(4th Cir. 1990), cert. denied, 500 U.S. 916 (1991).
ALJ grants OFCCP's motion to compel contractor to provide discovery regarding alternate
bases for jurisdiction and regarding single-entity issue, even though complaint alleged coverage
based solely on defendant's FSLIC insurance contracts. OFCCP v. USAA Federal
Savings Bank, 87-OFC-27, ALJ Rulings and Order on Plaintiff's and Defendant's Motions to
Compel Discovery, December 20, 1989, slip op. at 2; ALJ Recommended Decision and Order on
Motions for Summary Judgment, October 4, 1990, Secretary of Labor Final Decision and Order,
March 16, 1995.
An electrical utility contractor, which is statutorily required to provide utility services to all
users, including the Government, did not voluntarily assume the obligations of Section 503.
OFCCP v. City Public Service of San Antonio, 89-OFC-5, ALJ Rec. Dec. and
Order, April 4, 1990, slip op. at 4; reversed and remanded, Assistant Secretary for
Employment Standards Decision and Remand Order, January 18, 1995, slip op. at 7;
ConsentOrder dismissing case, February 5, 1996.
The Federal Savings and Loan Insurance Corporation (FSLIC) is a contracting agency
because it is an instrumentality in the Executive branch of the Government. OFCCP v.
USAA Federal Savings Bank, 87-OFC-27, ALJ Recommended Decision and Order on
Motions for Summary Judgment, October 4, 1990, slip op. at 5, reversedonothergrounds, Secretary of Labor Final Decision and Order, March 16, 1995.
FSLIC insurance is not a Government contract; rather, it is a type of Federal financial
assistance. Id. at 9-12.
ALJ discusses purpose of FSLIC insurance. Id. at 9.
ALJ discusses differences between Federal deposit insurance and ordinary commercial
insurance contracts. Id. at 10-11.
ALJ discusses the position of Federal Deposit Insurance Corporation and the Federal Home
Loan Bank Board regarding OFCCP's determination that FSLIC insurance is a Government
contract. Id. at 11-12.
Because contractor stipulated before ALJ that, under the existing case-law at that time, it was
covered under Section 503 and the regulations, OFCCP was justified in not developing the
record
on issue of whether complainants would have carried out Federal contracts. Judicial economy
suggests not burdening the record with proof on every issue where there is a possibility a
statutory or regulatory interpretation may be reversed. OFCCP v. Rowan Companies,
Inc., 89-OFC-41, Special Assistant to the Assistant Secretary for Employment Standards
Dec. and Order of Remand, May 28, 1992, slip op. at 6, ALJ Rec. Dec. and Order on Remand,
January 4, 1993; remanded, Assistant Secretary for Employment Standards Order of
Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996;
pending, Administrative Review Board.
Remand to ALJ is appropriate because considerations of economy suggest that the record on
coverage be fully developed under currently applicable legal principles so that Assistant
Secretary
can determine whether it is necessary to review the lengthy record and consider the complex
merits issues raised by this case. Ibid.; remanded, Assistant Secretary for
Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and
Order
on Remand, March 11, 1996; pending, Administrative Review Board.
It would not be unfair to require contractor to expend additional resources necessary to
respond to discovery regarding work-on-the-contract issue after considerable expense of
defending litigation because even if case were dismissed now for lack of jurisdiction, OFCCP
could renew investigation to resolve the issue and, under 41 CFR 60-1.43, could require
contractor to make available its records on Government contracts and subcontracts. Id.
at 7; remandedonothergrounds, Assistant Secretary for
Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and
Order
on Remand, March 11, 1996; pending, Administrative Review Board.
If OFCCP can establish coverage under new legal theory set forth in WMATA v.
DeArment, 55 EPD ¶ 40,507 (D.D.C. 1991), Assistant Secretary has an obligation
under Section 503 to determine whether complainants have been subjected to discrimination and
are entitled to relief. Thus, case should be remanded to ALJ for determination whether coverage
exists for each individual complainant. Ibid.; remandedonothergrounds, Assistant Secretary for Employment Standards Order of Partial Remand, April
11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending,
Administrative Review Board.
Contractor's mere acknowledgment that it is a Government contractor under Section 503
cannot be construed as an admission that it had Government contracts which complainants would
have performed. OFCCP v. Yellow Freight Systems, Inc., 79-OFCCP-7, Special
Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand,
August 24, 1992, slip op. at 5-6; ConsentDecree, February 2, 1993.
A judgment by default as a sanction for failure to comply with a discovery order is a drastic
remedy and should be applied only in extreme cases. However, where only the coverage issue
was remanded and a disposition on the merits has already been recommended in favor of the
contractor, a judgment by default on the issue of coverage is appropriate where contractor fails to
comply with ALJ discovery order. OFCCP v. Rowan Companies, Inc.,
89-OFC-41, ALJ Rec. Dec. and Order on Remand, January 4, 1993, slip op. at 6;
remanded,
Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second
ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review
Board.
A defendant's failure to produce evidence on an issue of jurisdiction such as coverage may
be
held to constitute an admission that jurisdiction lies. Ibid.; remanded, Assistant
Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ
Decision and Order on Remand, March 11, 1996; pending, Administrative Review
Board.
Because contractor failed to comply with ALJ discovery order requiring contractor to
respond "fully" to OFCCP's interrogatories regarding coverage, ALJ imposes
sanction resembling judgment by default under FRCP 37(b)(2)(c): i.e., ALJ holds that,
under the principles set forth in WMATA, each complainant would have performed work
on defendant's Government contracts, subcontracts, or oil leases. Id. at 6-7;
remanded, Assistant Secretary for Employment Standards Order of Partial Remand,
April
11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending,
Administrative Review Board.
In order to successfully show that an employee has been unlawfully discriminated against in
violation of Section of 503, it must be established that: 1) the alleged violator is an employer
covered under the Act; 2) the employee is handicapped; and 3) the employee is qualified for the
position with or without reasonable accommodation. The contractor then has the opportunity to
demonstrate that the accommodation would pose an undue burden on the contractor's business.
OFCCP v. Exxon Corporation, 92-OFC-4, ALJ Rec. Dec. and Order, June 15,
1993, slip op. at 22; affirmedonothergrounds, Administrative
Review Board Final Decision and Order, October 28, 1996.
In light of WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. l99l), the
parties are directed to file additional briefs with the Assistant Secretary addressing whether the
WMATA decision "bears on the Department's jurisdiction to proceed with review
of the case." OFCCP v. Yellow Freight Systems, Inc., 82-OFC-2, Acting
Assistant Secretary for Employment Standards Order, August 20, 1993, slip op. at l-2;
remanded, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993;
ConsentDecree, January 31, 1994.
Employee/applicant of a trucking company was employed to carry out a contract where the
specific terminal handles government freight and the particular class of workers which include
the
complainant specifically worked on jobs pursuant to bills of lading as assigned on a random
basis.
As a result, the probability that complainant would have worked on a government job is no less
than any other driver. OFCCP v. Yellow Freight Systems, 89-OFC-40, ALJ
Recommended Decision and Order, May 17, 1994, at 18; ConsentDecree,
February 29, 1996.
There is no principle of administrative law that restricts an agency from reopening
proceedings to take new evidence after the grounds upon which it relied are determined by a
reviewing court to be invalid. Consequently, whether Commonwealth contested the issue of
coverage of the individuals under the Act from the outset of this action and continued to do so
throughout discovery and the hearing has no bearing on the necessity to remand the issue to the
Department of Labor. Commonwealth Aluminum Corp. v. U.S. Department of
Labor, et al., No. 94-0071-0 (C), (W.D.Ky. September 6, 1996) at 4.
Subject matter jurisdiction must be established before an allegation of discrimination under
Section 503 of the rehabilitation Act can be litigated. Once such jurisdiction is established, a
Section 503 action may proceed to litigation on the merits. OFCCP v. Norfolk
Southern Corporation, 89-OFC-31, Assistant Secretary for Employment Standards Decision
and Order of Remand, October 3, 1995, at 4-5.
The working-on-the-contract issue is jurisdictional and must be specifically addressed by the
ALJ prior to proceeding to the merits. Id. at 5.
Since the WMATA decision represents an intervening change of law, considerations of
fairness and economy require that the case be remanded to accord OFCCP the opportunity to
deal
with this issue. OFCCP v. Mt. Bell Telephone Co., 87-OFC-25, Assistant
Secretary for Employment Standards, Order Denying Motion to Strike; Decision and Order of
Remand, August 25, 1994, at 8; ConsentDecree, February 9, 1995.
The ALJ found that absent evidence that Defendant attempted to carry out a contract or
subcontract, by the operation of its land rigs individuals who would have been assigned to
perform work on those rigs are not covered "persons" under the Act.
OFCCP v. Rowan Companies, Inc., Marine Division, 89-OFC-41, ALJ Second
Recommended Decision and Order on Remand, March 11, 1996, at 3; exceptionspending, Administrative Review Board.
Any perse or automatic negation of coverage merely because the applicant
was never hired, and thus the fact of work assignment destination can never be determined,
would
excuse all employers who discriminately fail to hire in violation of the Act, a result which could
not have been intended. Id. at 4.
The ALJ found that individuals who would have been assigned to offshore rigs were covered
persons under the Act, where the record showed that Defendant's drilling services were necessary
to the prime contractor's exercise of its right to drill for oil and gas on government owned land.
Id. at 4.
The Assistant Secretary remanded the case to the ALJ for appropriate findings on the
"working-on-the-contract" issue, and held that, "[a]lthough the
"working-on-the-contract" jurisdictional issue was not raised or addressed below or
in the pleadings filed subsequent to the [ALJ] Recommended Decision and Order, I am required
to address this matter before the case can proceed." FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 230-31 (1990). OFCCP v. United Airlines, Inc.,
86-OFC-12, Assistant Secretary for Employment Standards, Decision and Order of Remand,
December 22, 1994, at 4-5.
In remanding the case to the ALJ for further proceedings to determine whether coverage
existed during the relevant periods for the individuals for whom OFCCP continues to seeks
relief,
the Acting Assistant Secretary held, that "[s]ince the ALJ's coverage holding was based
upon a provision of a regulation which has since been declared inconsistent with the language of
Section 503 at the times of the alleged violations, the question of jurisdiction must be remanded
to
the ALJ to give OFCCP an opportunity to introduce further evidence, if necessary, to satisfy the
new legal standard in WMATA. . . . If OFCCP can establish coverage, I have an
obligation under the statute to ultimately decide the entire action." OFCCP v.
Southern Pacific Transportation Company, 79-OFC-10A, et.al., Acting Assistant
Secretary for Employment Standards, Decision and Order of Remand, February 24, 1994, at 7-8;
ConsentOrder, October 13, 1995.
The Assistant Secretary considered the issue of jurisdiction or coverage raised by Yellow
Freight's Motion for Reconsideration pivotal in determining whether Section 503 was violated
vis-a-vis Mr. Quick. "Obviously, if he was not covered by Section 503, Yellow Freight
could
not have violated Section 503 towards him. . . . Accordingly, on remand it is only proper that the
ALJ also be directed, . . . , to rule upon the jurisdictional defense that the Plaintiff has failed to
prove jurisdiction under the Washington Transit case." OFCCP v.
Yellow Freight System, Inc., 84-OFC-17, Acting Assistant Secretary for Employment
Standards, Reconsideration of Final Decision and Order of Remand, December 22, 1993, at 3
n.2;
Order Approving Settlement and Dismissal, April 20, 1994.
Noting that the ALJ's Recommended Decision and Order made no specific findings on the
jurisdictional or coverage issue of working-on-the-federal-contract as applied to Mr. Quick's
employment, the Assistant Secretary held that he was not precluded from ruling on the
jurisdictional or coverage issue here, and would be remiss in avoiding this issue. Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 546 (1986). Id. at 6-8.
The Assistant Secretary expanded and modified his July 27, 1993, Final Decision and Order
of Remand to require that the ALJ hearing and the resulting recommended decision . . . first and
clearly specifically address the working-on-the-contract jurisdictional or coverage issue as
applied
to Mr. Quick. Id. at 8.
To establish coverage of the individual complainant, OFCCP must prove by a preponderance
of the evidence that the individual was working or would have worked on a government contract
absent the discriminatory act. OFCCP v. Keebler Company, 87-OFC-20,
Administrative Review Board, Final Decision and Order, September 4, 1996, at 3; Motion for
Reconsideration pending, Administrative Review Board.
OFCCP's contention that the determination of who is employed to carry out a contract should
be based upon job categories would improperly place the burden of proof on the contractor.
Id. at 3; Motion for Reconsideration pending, Administrative Review Board.
OFCCP has the burden of demonstrating that Ms. DeAngelis was an individual employed by
Keebler to carry out government contracts during the period of her employment from January 7
to May 20, 1985, which was the time of the allegedly illegal termination. It is not the
[d]efendant's burden to demonstrate that certain employees are unconnected to the Government
contracts under consideration. OFCCP v. Keebler Company, 87-OFC-20,
Administrative Law Judge, Recommended Decision and Order, July 20, 1995, at 5-6;
affirmed, Administrative Review Board, Final Decision and Order, September 4, 1996;
Motion for Reconsideration pending, Administrative Review Board.
OFCCP failed to satisfy its burden of proving that complainant was employed to carry-out-a
contract where she worked at one of two plants producing Tato Skins and the evidence
establishes, at best, that she had as equal chance with all other production attendants at both
facilities to have produced the Tato Skins sold pursuant to the Government contracts. Id.
at 5-6; affirmed, Administrative Review Board, Final Decision and Order, September 4,
1996, at 3; Motion for Reconsideration pending, Administrative Review Board.
Although the "working-on-the-contract" jurisdictional issue was not raised or
addressed below or in the pleadings filed subsequent to the Recommended Decision and Order,
the Assistant Secretary for Employment Standards held that the issue must be addressed before
the case could proceed and remanded it to the ALJ for appropriate findings on the
"working-on-the-contract issue." OFCCP v. Keebler Company,
87-OFC-20, Assistant Secretary for Employment Standards, Decision and Order of Remand,
December 21, 1994, at 3-4; Administrative Law Judge, Recommended Decision and Order, July
20, 1995; Administrative Review Board, FinalDecision and Order, September 4, 1996; Motion
for
Reconsideration pending, Administrative Review Board.