When the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) fails to reach a settlement with a federal contractor on a pending compliance evaluation where OFCCP has alleged violations, the agency has the option of asking DOL’s Solicitor of Labor, the agency’s chief lawyer, to initiate a formal administrative enforcement proceeding. These formal OFCCP charges are heard by a DOL administrative law judge (ALJ), who holds a hearing, considers evidence, and then issues a recommended decision and order.
After the ALJ issues his or her ruling, the parties can appeal it to DOL’s Administrative Review Board (ARB), an agency tribunal composed of up to five members appointed by the Secretary of Labor that functions like an appeals court. There are two high profile ALJ decisions in cases brought by OFCCP that are currently pending before the ARB, one involving Google, and the other Convergys Customer Management Group (Convergys).
As of today, the ARB is composed of only two members, both appointed by former Obama Administration Secretary of Labor Tom Perez. Although the ARB members are appointed by and serve at the pleasure of the Labor Secretary, current Secretary Alexander Acosta has not made any appointments or reappointments since taking office. According to a DOL official with whom we conferred, the ARB can issue a ruling with only two sitting members.
Members of the Center for Workplace Compliance (CWC) can read more here.