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UNITED STATES DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES

OFFICE OF FEDERAL CONTRACT COMPLIANCE
PROGRAMS, UNITED STATE}S DEPARTMENT
OF LABOR,
Plaintiff,

v.
LEPRINO FOODs COMPANY,
Defendant.

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CONSENT DECREE AND ORDER
Pursuant to 41 CFR § 60-30.13, tlte parties to this action, Plaintiff, Uni!ed States
Department of Labor, Office of Federal Contract C9mpliance Programs (''OFCCP") and
Defendant, Leprlno Foods Company ("Leprino Foods"), have negotiated and executed this
Consent Decree, including all attachments hereto. This Decree constitutes a full and finalresolution of this action and all issues arising from or related to the compliance review of
Leprino Foods' Lemoore West facility located at 351 Belle Haven Drive, Lemoore, California ·
93245 ("Lemoore West".), initiated by OFCCP in Sep!ember 2006.
Both OFCCP and Leprino Foods desire to resolve this action and all issues that were
raised or that could have been raised In the Administrative Complaint. They therefore have
entered into a complete and satisfactory compromise and settlement of the claims raised or that
could have been raised in the Administrative Complaint filed in this matter.

4.l'iU%4 I

 I. JUR!SDICfiON AND PROCEDURAL HIS'l'ORY
1.

This forum has jurisdiction in this matter pursuant to Seetions 208 and 209 of

Executive Order 11246 (30 Fed. Reg. 12319), as amended, and the regulations issued thereunder
at 41 CFR Chapte(60.
2.

OFCCP initiated a compliance review of Leprino Foods' Lemoore West facility in

September 2006.
3.

OFCCP issi1ed a Notice of Violation on December 3!, 2007 and a Notice to Show

Cause on July 15, 2009 advising Leprino Foods of its findings that Leprino Foods' use of the
·workKeys® job skills assessments as a prerequisite.· for progressing in the hiring process resulted

.

.

.

in discrimination against minority applicants for on-call Laborer positions at the Lemoore West
facility during the review period of January 1,.2005 through October 14, 2006. OFCCP alleged
that Leprino Foods violated Executive Order 11246, and implementing regulations at 41 CFR
Chapter 60.
4.

Leprino Foods denied the allegations contained in the Notice of Violation and the

. Notice to Show Cause. Leprino Foods presented OFCCP with a WorkKeys® Job Profile, a
WorkKeys® Content Validity Report by ACT, and a Content Validation Report by APT, Inc.
Leprino Foods argued that these studies constituted sufficient evidence of validity;
5.

After reviewing all of the. validity evidence provided by ACT, Inc. and Leprino

Foods and consultlng with. testing experts, OFCCP determined that in. its opinion the evidence
did not support the va]jdity.of the testing component !)sed to select individuals for on-call
positions in the Laborer Job Group.
6.

Conciliation efforts were unsuccessful and the matter was referred to the Office of

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4l'm%4. [

 · the Solicitor of Labor for administrative enforcement.
7.

OFCCP filed .an Administrative Complaint with the Office of Administrative Law

Judges on September 1, 201 L The Complaint alleges that Leprino Foods failed to comply with
its obligations as a federal government contractor under Executive Order 11246 and its
implementing regulations at41 CPR Parts 60-1 through 60-50, at Leprino Foods' Lemoore West
facility.
8.

on· January 19, 2012, the parties jointly requested the appointment of a settlement .

judge. On February 1, 2012, Administrative Law Judge Steven B. Berlin, the Settlement Judge,
issued a·Notice of Settlement Conference and Orde;.

9.

The parties met in person. with the Settlement Judge on April 20, 2012, and again

on ·May 3, 2012. This agreement is the product of those settlement discussions.

H. GENERAL PROVlSlONS
10.

This Decree shall constitute the final Administrative On;ler in this case and shall

have the same force·and effect as an order made after a full hearing and final review by the
Administrative Review Board.
II.

This Consent Decree constitutes full and final settlement and resolution of all

issues, actions, causes of action and claims arising, or that could have arisen, out o(the
Administrative Complaint filed h~ein. This Deeree shall be binding upon the parties as to all
issues, actions, causes of action, and claims within the scope of the Administrative Complaint
which have been or could have been advanced by OFCCP.

OFCC~

will not initiate a

compliance evaluation regarding Leprino Foods' use of the WorkKeys® test in its application
process for on-call Laborer or General Labor posit{ons at its Lemoore West facility from October
15, 2006 through the Effective Date of this Consent Decree.

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41~0964

I

 12.

The record forming the basis on which this Consent Decree is entered shall

consist of the Administrative Complain~.the Answer to the Administrative Complaint by
Leprino Foods, this Consent Decree and Order, and the atta!:hments hereto.

13.

This Consent Decree shall not become final until it bas l;>een signed by tiJe

Administrative Law Judge.· The Effective Date of this Consent Decree shall be the date on
which this Consent Decree is signed by the Administrative Law Judge.

14.

The Office of Administrative Law Judges shall retllinjurisdiclion of this

proceeding for the sole purpose of enforcing implementation of this Consent Decree in

.

accordance with its terms.
The Office of Administrative
Law Judges shall retain jurisdiction of
.
.
this case for a period of two (2) years following the Effective Date of the Consent Decree.
However, in the event that Leprino Foods has not satisfied its hiring or reporting obligations
under this Consent Decree at the expiration of the two-year term. the Office of Administrative
Law Judges shall retain jurisdiction only until such time as Leprino Foods has satisfied its hiring
and reporting obligations under the Consent Decree.

1-5.

All further procedural steps to contest the binding effect of this Consent Decree

are waived by both parties.

!6.

Any right to challenge or contest the validity of the findings and Order entered

into in accordance with the agreements contained in this Consent Decree is. waived by both
parties.
17.

This Consent Decree dees not constitute and is not an admission by Leprino

Foods of any violation of Executive Order I I 246, Its implementing regulations, any Executive
Order; any statute or any regulations, nor is it an admission as to any fac~ matter or thing relating
to, arising out of or based on the compliance review initiated by OFCCP in September 2006; the

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4H0964 I

 Notice of Violation, the Notice to Show Cause, or the Administrative Complaint Subject to the
performance by Leprino Foods of all duties and obligations cOntained in this Consent Decree, all
alleged deficiencies which were or couid have been raised or identified in the Administrative
Complaint shall be deemed fully resolved by this Decree.
18.

lt is the express intention of the parties that this Consent Decree shall not create

any rights of action in any third parties, nor shall it be offered in evidence or otherwise used in

~ny manner by any perso~. firm, corporation, entity, organization, or agency of any government
in an attempt to prove that Leprino Foods has violated any. federal, state or local ordinance,
statute, law, regulation at order, except for proceedings initiated to enforce the provisions of this
Consent Decree.
19.

This Consent Decree shall be binding on Leprino Foods, its successors, assigns,

divisions and subsidiaries, and on OFCCP, the U.S. Department of Labor, and its agents, officers
and employees.
20.

Nothing herein is intended to relieve Leprino .Foods from compliance with the

requirements of Executive Order 11246 or its implementing regulations, or to limit OFCCP's
·right under applicable regulations to review Lepri.no Foods' compliance with such requirements.
Compliance with this Consent Decree shall constitute compliance with Executive Order 11246
only with respect to those issue·s that are within the scope of this Consent Decree.
21.

Leprino Foods agrees that OFCCP may review compliance with this Consent

Decree, and will provide OFCCP with all documents that are related to such a review. Leprino
Foods also agrees .that, upori reasonable advance notice, OFCCP may come onsite to.the
Lemoore West facility as is necessary to review compliance with the Consent Decree.

4l'i0%4-l

 22.

Leprino Foods agrees that there will be no retaliation of any kind against any

beneficiary of this Consent Decree, or against any person who has provided information or
assistance to OFCCP, .or who files a complaint, or who participates in any manner in any
proceeding under Executive Order 11246.
23.

Each party agrees to pay its own feeS, costs, and other expenses incurred at any

stage of these proceedings, including but notiirnited to attorneys' fees that may be available
under any applicable law.
ID. SPECIFIC PROVISIONS

24.

The parties desire to enter into a just and reasonable resolution of this matter

without further proceedings. To that end, they have negotiated in good faith and have executed
ihis Consent Decree.
25.

For purposes of this Consent Decree; the affected class members

are minority

applicants who .submitted applications for on-call positions in the Laborer Job Group at Leprino
Foods' Lemoore West facility during the period from January 1, 2005, through October 14, 2006,
and failed the WorkKeys® test. The affected class members are identified on Attachment A.
A. Selection Procedures
26.

Leprino Foods will c~ase \ltilizing the WorkKeys® 'test at its-Lemoore West

facility as part of the selection process for General Labor positions within fifteen (15) days of the
Effective Date of this Consent Decree.
·21.

Leprino Foods agrees to train its managers involved in the recruiting, selection,

and/or tracking processes at its Lemoore West facility regarding its revised selection procedures
and Leprino Foods' non-discrimination and affirmative action obligations, and tracking
requirements. Tlie training will inciOde instruction in the proper implementation of the revised ·

6

 recruitment, tracking and selection procedures, the neutral application of the specified
qualifications and criteria that will be used at each step in the hiring process, the procedures to be
used to document the decisions made at each step in the hiring process, and the procedures to be
used to ensure thatdocm:nents are retained iQ accordance with 41 CFR 60-1.12(a) and 60-3.

· B. Notification:
28.

Within thirty (30) days from the Effective Date of this Consent Decree, Leprino

Foods will notify the affected class members listed on Attachment A of the terms of this Consent
Decree by m3iling via certified mail or other form of delivery showing written proof of delivery
to each class member: a Notice to Class Member (Attachment B, hereinafter "Notice"); the
Address ·and Social Security Verification and Employment Interest Form (Attachment C,
hereinafter "Interest Form"); and a Release of Claims (Attachment D, hereinafter "Release").
The parties agree that Leprino Foods may use a third-party administrator for any
communications with and distributions to class members required by this COnsent Decree.
29.

Each class member listed on Attachment A (or their legal representative in the

event that they are deceased) shall be·given thirty (30) days from the date of the Notice to
respond.
30.

Fifteen (15) days after the last response was due, Leprino .Foods shall provide

OFCCP with a list of ClaSs members who did not receive the Notice, and information regarding
Leprino's attempts to locate these class members. After Leprino Foods has provided thislist to
OFCCP, OFCCP will have an additional thirty (30) days to attempt to locate those class
.members who did not receive the Notices sent by Leprino pursuant to Paragraph 28, and will
provide Leprino Foods with a list of class member$ that it loc;ates.
31.

Leprino Foods will then have thirty (30) days to mail additional Notices, Interest

41'i0964

j .

 Forms, and Releases to the class members on the list that OFCCP provided under Paragraph 29. ·
These class members will have thirty (30) days from the date of the second notice to respond.
32.

Leprino Foods will provide OFCCP with the final list of all class members who

were located and who returned tbe signed Release and Interest Form in accordance with the
ins.tructions provided in tlle Notice (as referenced in Paragraphs 29 and 31) within fifteen (15)
days after the.last response was due ("Final List"). OFCCP will approve the Final List and notify
Leprino Foods of its· approval or it will work with Leprino Foods to revise tbe Final List so that it
can be approved by OFCCP. The parties will make every effort and negotiate in good faith to
resolve any dispute between them about indusion or exclusion of any class member on the Final·
List. All class members identified on the Final List will equally share in the monetary
settlement. If a class member is not listed on the Final List, the class member shall not be
. entitled to any relief pursuant to this Consent Decree ..Leprino Foods and OFCCP agree that
Leprina Foods shall have no further liability under this Consent Decree for damages, back pay,
interest, ·or any other relief to any class member identified on Attachment A who cannot be
located within the timcfrarnes enumerated above or who does not complete and submit an
Interest Forni and an executed Release and is therefore not on the Final List.
33.

Copies of executed Releases and Interest Forms shall be provided by Leprino

Foods to OFCCP upon request. In the event that OFCCP receives any executed original
Releases and Interest Forms, OFCCP shall provide the origiilals to Leprino Foods.

C. Back Pay/Interest
34.

In settlement of all claims for back pay, interest and other mone~y relief to the

affected class, Leprino Foods agrees to pay the total amount or$550,000 ($350,000 in back pay
and $200,000 in interest) to the minority class members identified on the Final List. This amount

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 shall be referred to hereafter as the "Settlem~nt Fund." The mon~tary settlement is a· negotiated
amount that represents back pay Jess interim earnings, and takes into account the attrition of
those persons hired Into the 0!1-call Laborer jobs at the l:.emoore West facility who applied
during the review period, plus interest.
35:

Within thirty (30) days after Lepririo Foods receives notice of OFCCP' s approval

of the Final List, Leprino Foods shall mail a check to each class member on the Final List,
representing their pro rata share of th.e total amount in the Settlement Fund. Leprino Foods shall
distribute the Settlement Fund equally among the class members on the Final List Monetary
· relief is not contingent upon accepting any job offer by Leprino Foods,
· 36.

The payment to each class member of his/her share of the Settlement Fund shall

. be subject to legal deductions required by law (such as federal, state, and/or local taxes and
FICA) on the portion representing back pay only. Leprino will pay the Internal Revenue Service
("IRS") the employer's share of social se<ourity Withholdings, and shall aiso mail an IRS Form
W-2 for the portion of the payment representing back pay, and an IRS Form 1099 for the portion
of the P:lyment representing interest to each class member on the Final List for the tax year in
which the back wages and interest paymentS are made.
37.

Any check sent to a class member which remains uncashed 180 days after the date

on which the check was mailed to the class member or which ultimately was returned as
undeliverable shall be void, and the amounts of uncashed checks shall revert to !.l)e Settlement
Fund. Leprino will have thirty (30) days to evenly distribute the remaining monies in the
Settlement Fund among those class members on the Final List who cashed .the checks sent by
Leprino pursuant to Paragraph 35.
38.

The parties may modify any time frame set forth in this Decree by mutual

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41'i0%4.l

 agreement. In addition, OFCCP or Leprino Foods may petition the Administrative. Law Judge to
extend any of the. above time periods for no more than thirty (30} days in order to permit a class
member to receive his or her share of the :Settlement Fund, where the interest of justice would be
served by such extension and for good cause shown.

D. Hiring of Class Members
39.

As General Labor positions (formerly called on-cal! Laborer positions) become

available at Leprino Foods' West Lemoore facility, Leprino Foods shall extend job offers in
writing to those class members on the Final List who have returned the Interest f'orm expressing
an interest in employment and who have executed the Release in accordance with the
instructions contained in the Notice, until 13 class members are hired into General Labor
positions (or other full-time positions with the same or greater pay and benefits), or until the list
of class members expressing an interest in employment is exhausted, whichever occurs first.
Class members shall be notif)ed of available General Labor positions in the order that the class
members appear on the Final Lis~ which will be arranged according to the date the Interest Form
and Release were received by Leprino Foods. If a class member does no( respond to the
notification of available General Labor positions within fourteen (14) calendar days after
notification is given, Leprino Foods will notify the next class member on the Final List, and the
class member who did not respond to the notification will no longer be ~ligible for employment
with Leprino Foods under this Consent Decree.
40.

Interested class members must satisfy hiring qualifiGations and requirements no

more stringent than tbose applied to other applicants for the General Labor position at the
Lemoore West facility, and will not be required to pass the WorkKeys® assessments. Leprino
Foods intends to require all applicants for the General Labor position at its Lemoore West plant,

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4.l'i(l964.1 .

 including· interested class ·members, to I) complete an updated employment application and
indicate that heJshe is available to work all shifts, weekends and holidays; 2) pass a drug test; 3)
pass a background check; 4) pass a functional capacity evaluation; 5) successfully complete
· ·Lepri.no Foods' standard interview process; 6) be eligible for rehire (if a former employee); and
7) be eligible to work in the United States. OFCCP does not endorse Leprino Foods' hiring
process or make any representation as to whether it will cause discrimination against any
applicants. If an interested class member is not hired because he·or she did not respond to the
notification of available General Labor positions, or based upon his or her failure to meet any of
Lcprino Foods' standard hiring qualifications and criteria, or for any other reason, Leprino Foods
shall provide OFCCP with documentation .supporting such non-hire.
4 l.

Jf the class member. successfully completes the selection process, Leprino Foods

shall give the class member a job offer and provide him or her with a "report to work" date. The
"report to work" date may be as early as the day following the class member's completion of the
appiication process or such later date as Leprino Foods deems appropriate, given its business
needs- If,.however, the class member is employed afthe time the class member receives the job
offer and "report to work" date, Leprino Foods will delay the class member's "report to work"
date for a period of up to tifteen (15) calendar days from his or her rec.eipt ofLeprino Foods' job
offer so as to allow the ciass member to provide notice, if desired, to his or her employer. ·
42.

In all cases, if the class member does not report to work on the day desigqated by

Leprino Foods, the job offer shall be considered withdrawn, and the class member will no longer
be eligible for employment with LeprinoFoods under the Consent Decree. Leprino Foods shall
mail to OFCCP a copy of thejob offers made in accordance with this Consent Decree within 30
days of such job offer being made. No class member hired by Leprino Foods into the General

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 Labor position before the signing of this Consent Decree may be counted as a hire made pursuant
t() this Consent Decree. A class member hired by Leprino Foods after the effective date of this
Consent Decree into any full-time position with equivalent pay and benefits to the General Labor
position may be counted as a hire made pursuant to this Consent Decree.
43.

Leprino Foods shall pay.to each class member it hires pursuant to this Consent

Decree at least the same rate of pay and provide the same opportunity for overtime as· provided

to other General· Laborers who are hired within thirty (30) days of the class member.
44.

Class members who are hired pursuant to this Consent Decree shall. be provided

Retroactive Seniority. For purposes of this Consent Decree, Retroactive Seniority means sick
pay and vacation pay accrual on a going-forward basis at the rate the class member would accrue
as if he or she had been hired as of the date they applied during the review period, and seniority
for bidding and promotion purposes based as if the class member had been hired as of the date
they applied during the review period. No class member so hired shall have .any sick or vacation
pay "in the bank" on the actual day of hire, but shall only accrue sick and vacation pay on a
going-forward basis. Retroactive Seniority will become effective on the date of hire.
E. Compliance. with the Executive Order and Reporting

45.

. As long as Leprino Foods remains a federal contractor subject to "the Executive

Order, Leprino Foods agrees to annually prepare arid update Affirmative Action Plans ("AAPs")
at its Lemoore West facility and to retain all supporting documentation as required by the
Executive .Order, and its implementing regulations. ·
46.

Leprino Foods shall ensure that its records pertaining to the Lemoore West

facility are collected and maintained in accordance with the requirements of 41 CFR Parts 60-1
and 60-3.

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41\fl%4.1

 41.

Leprino Foods agrees that its Lemoore West facility will deyelop and execute

action oriented programs to correct problem areas and attain goals as required by 41 CFR § 602.!7(c).
48.

Lepri11o Foods agrees to develop and implement an auditing system that

periodically measures the effectiveness of its ·total affirmative action program as required .by 41
CFR § 60-2.17(d}.
. 49.

Leprino Foods agrees to prepare and submit Consent Decree Progress Reports bi-

annually for a period of two years beginning from the ,Effective Date of this Consent Decree.
The four reports will be due no later than sixty (60) days following the first, second, third and .
fourth six-month intervais -during the two-year period. These reports shall be submitted to
William Smitherman, Pacific Regional Director, OFCCP, 90 Seventh Street, Suite 18-100, San
Francisco, CA 94103-1516. These reports shall relate solely to the Lemoore West facility and
shall provide the following information for the six-month period covered by the report:
(A)

·For each class member hire<l pursuant to this Consent Decree, his or her

name, job title, rate.of pay, starting date, and Retroactive Seniority credited to that class member;
(B)

The name of ~II class members who did not respond to the notification of

ava,ilabk positions, refused a bona fide offer of employment or who did not report to work,
including tbe date of the notification or offer, the job position offered, the rate of pay offered,
· and the date of refusal or failure to report to work;
(C)

For each class member Who was considered for a General Laborer position

pursuant to this Consent Decree but not selected, his or her name and the reasons for the non- .
selection, along with documentation supporting the non-selection;
(D)

The amount of monetary payments provided to each class member on the

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4J5!l964.1

 Final List. Leprino Foods shall provide documentation of monetary benefits provided to
members on the Final List, which should include copies of checks disbursed by the company to
the class members, or other equivalent documentation verifying that class members were paid;
(E)

A description of the trainingprovideq to managers at Leprino Foods'

Lemoore West facility in accordance with Paragraph 27 of this Consent Decree, including the
names and job titles of the person(s) conducting the training, the names and job titles of persons .
participating in and attending the training, and an outline of the content of the training and any
materials provided to participants or used by the trainers to conduct the training;
(F)

The total number of applicants and hires for the General U;borer positions

. at the Lemoore West facility during the reporting period, with a breakdown by race, excluding
class members who applied and/or were hired pursuant to this Consent Decree; and,
(G)

For the General Laborer positions at the Lemoore West facility, the results

of Leprino Foods' analysis as to wheltter its selection process had adverse impact, as defined in
41 CFR §c 60-3.40. on minorities during

the reporting period.

The data shall exclude class

members who applied and/or were hired pursuant to this Consent Decree. If Leprino Foods ·
determines that ihe selection process had an adverse impact on minorities, any remedial actions
tak.en .or to be taken by Leprino Foods .

. IV. IMPLEMENTATION AND ENFORCEMENT OF THE DECREE
50.

OFCCP shall be so lily responsible for enforcement of compliance with the terms

of the Consent D=ee.

5 I.

Leprino Foods agrees that OFCCP may review·compliance with this Consent .

Decree. If at any time during the term of this Decree, OFCCP believes that Leprino Foods has
violated any portion of this Consent Decree, it will promptly notify Leprioo Foods in writing.

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 This notification will include a statement of the facts and circumstances relied upon by OFCCP
in fanning thatbelief. Leprino Foods will have thirty (30) days in which to respond in writing to
the allegations of vi.olation, except in those circumstances where OFCCP alleges that such a
delay wcmld result in irreparable injury, e.g., ifOFCCP obtained information that evidence

was

being irrevocably destroyed.
52.

Enforcement proceedings for violation of this Consent Decree may be initiated at

any time after the thirty (30) day period has elapsed (or sooner in the case where OFCCP alleges
that irreparable injury would result for such thirty (30) day period), upon filing with the Office of
Administrative Law Judges a motion for an onJer of enforcement and/or sanctions. The
. Administrative Law Judge .may, if he deems it appropriate, schedule an evidentiary hearing on
the motion. The issues in a hearing on the motion shall relate solely to the. issues of the factual
and legal claims made in the motion.
53.

Liability for violation of this Decree may subject Leprino Foods, and its

successors, assigns; divisions or subsidiaries to the sanctio.ns set forth in the Executive Order and
its implementing regulations and other appropriate relief.
54.

If a motion f<ir an order of enforcement or clarification is unopposed by Plaintiff

or Defendant, as appropriate, the motion may be presented to the Administrative Law Judge
without bearing, and the proposed order may be implemented immedia(ely. Jf said application or

moti~n is opposed by any party, the party in opposition shall file a written response within
twenty (20) days of service of such motion.
WHEREFORE, the parties move that an Order be entered adopting the above Consent
Decree as the final disposition of this matter.

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41~1l9fi4.1

 IT IS SO ORDERED:

Dated: 201i

 

Judge Berlin
Admin-ismti ve Law Judge

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4110954.:

AGREED AS TO FORM AND SUBSTANCE:
For Leprlno Foods Company: .

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;/Kok)ert S J\

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SUf j Hv\f" cu, 1·t":So 1A r ur
G};1Jk ~ ,jud J l l1 dO { 2

DATE: July ...J..L, 2012

and
M. PATRICIA SMITH
Solicitor of Labor
MARY K. ALEJANDRO
Acting Regional Solici.tor
IAN H.ELIASOPH
Counsel for Civil Rights

·B~~~+-

By:

~c.~

. SANDRA RAPPAPOR
. .
HANSON BRIDGETT LLP
425 Market Street, 2fih Floor
San Fran~isco, CA 94105
Attorney for Leprino Foods Co.·
DATE: July

LAURA C. BREMER
Trial Attorney
United States Department of Laoor
Office of the Solicitor
90 Seventh Street, Suite 3-700 ·
San Francisco, CA 94103

j_2, 2012

DATE: July.!.!_, 2012

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41.10964.1