Friday, December 21, 2012

ENTERGY SERVICES 4TH AMENDMENT CHALLENGE TO OFCCP DENIED ON TECHNICAL GROUNDS

by Art Gutman Ph.D., Professor, Florida Institute of Technology

We’ve seen this play before. We reported on USSA’s 4th Amendment challenge in an Alert posted on July 17, 2012, and the results of that challenge in an Alert posted on 9/24/12. In that case, ALJ Stephen L. Purcell ruled that the OFCCP lacks “subject matter jurisdiction.” Purcell opined that the DOL’s Office of ALJs has subject matter jurisdiction only over “administrative disputes” for complaints filed under Executive Order 11246 in accordance with implementing regulations at 41 C.F.R. § 60-30.5, because these regulations “expressly limits authorization to institute such proceedings to ‘the Solicitor of Labor, Associate Solicitor for Labor Relations and Civil Rights Regional Solicitors and Regional Attorney upon referral” from the OFCCP.

Well … the same thing happed again In Entergy Servs. V. OFCCP (OFCCP, DOL ALJ, No. 2013-OFC-00001, 11/27/12) --- same ALJ, same ruling. Purcell reiterated that ALJs have regulatory authority over administrative complaints “when, and only when, that complaint is filed by” the labor solicitor and related entities upon referral from OFCCP.

An appeal in the USSA case is pending before DOL's Administrative Review Board (ARB No. 13-003), so it’s not clear if this one will be appealed.




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