Fines, job offers, enhanced reporting, and outside training are part of the conciliation agreement. 

Gender-based discrimination allegations at 5 US Food locations by 997 women resulted in a conciliation agreement between the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP), the DOL announced Friday. 

US Food locations in New Jersey, New York, Ohio, and North Carolina have been ordered to pay over $721,414 in back wages and interest extend job offers to 46 eligible class members, and to retain a hiring and employment consultant. US Foods is also required to report to the Office of Federal Contract Compliance Program (OFCCP) regularly on its hiring practices. which is consistent with OFCCP's newly introduced reporting requirements via a compliance and certification portal launched on March 31, 2023.

According to the DOL, a routine government contractor compliance review determined US Food locations in Perth Amboy, and Swedesboro, New Jersey.; Albany, New York; Cincinnati, Ohio and Charlotte, North Carolina engaged in discriminatory hiring practices against female applicants for various warehouse positions from 2019 to 2021.  US Foods actions allegedly violated Executive Order 11246, which prohibits federal contractors from employment discrimination based on race, color, religion, sex, sexual orientation, gender identity, or national origin. 

Acting Director Michele Hodge stated: 

Federal contractors like US Foods Inc. must ensure its employment practices comply with all federal laws, particularly those that seek to eliminate gender-based barriers to equal employment… Our compliance reviews have produced agreements that benefit the affected applicants and require US Foods to re-examine its hiring policies.

According to the DOL, US Foods has previously entered into agreements for similar alleged violations from 2017 to 2021 in Montgomery, Alabama; Bensenville, Illinois; Ogden, Utah; Lexington, South Carolina; Port Orange and Tampa, Florida; and Wixom, Michigan.

OFCCP’s New Program to Prevent Discriminatory Employment Practices by Government Contractors

OFCCP has been taking additional steps to confirm Government Contractors Compliance with Affirmative Action Program (AAP) requirements through its Contractor Portal launched earlier this year as detailed by Ogletree Deakins. The OFCCP’s Government Contractor Portal opened on March 31, 2023, and stayed open until June 29, 2023.

A contractor or subcontractor required to develop and maintain an AAP — includes any business that has 50 or more employees and a contract with a federal agency or department of $50,000 or more (for Plans under Executive Order 11246 (addressing minorities and women) and Section 503 of the Rehabilitation Act of 1973 (Section 503) (addressing persons with disabilities)) and/or $150,000 or more (for Plans under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) (addressing protected veterans)) as explained by David Kaplan of Foley & Lardner.

Per Abby Warren of Robinson and Cole, the OFCCP clarified that certain contractors who do not comply in a timely manner, are more likely to be audited by the agency and that those that have not certified timely may be included in a list provided to federal agency contracting officers, with the stated purpose being that the agencies will then notify the contractors of their obligations. 

Accordingly, contractors who have not complied with the affirmative action reporting requirements or have complied with the requirements but have not certified such compliance using the OFCCP’s Contractor Portal, should do so as soon as possible and possibly seek outside guidance to avoid ramifications.