By: Kathleen J. Raynsford

Entry-level hiring continues to be a hot topic for the food distribution industry.  Just this week, Tyson Fresh Meats, a Tyson Foods subsidiary, reached two settlements with OFCCP and agreed to pay over $2 million to over 1,500 female applicants for laborer jobs (called "no-jobber" positions) at four meat processing plants in Illinois, Iowa and West Virginia to resolve alleged gender discrimination claims.  Review a copy of the first Consent Decree dated September 13, 2011.  Review a copy of second Consent Decree dated September 14, 2011.

OFCCP alleged that Tyson Fresh Meats engaged in a pattern or practice of systematically rejecting female applicants as compared to their male counterparts at a statistically significant rate, and cited "inconsistencies in the selection process."  This is the third Tyson's subsidiary to be the subject of an OFCCP settlement in four years. 

The company must extend "no jobber" job offers to interested and eligible class members as positions become available.  To be considered eligible, the class members must submit expressions of interest in employment and meet certain hiring criteria, pass an interview, and a post-offer drug screen. 

In addition, OFCCP alleged that the company failed to implement compliant internal audit and reporting systems designed to ensure nondiscriminatory personnel practices, or to develop action-oriented programs to remedy the ongoing adverse impact against female job applicants.  Tyson Fresh Meats has agreed to continue to implement and maintain an internal audit and reporting system, as well as to develop and maintain necessary action-oriented programs.  The company will be subject to agency monitoring for two years, through the submission of periodic progress reports on hiring class members and settlement payments, which include documentation of anyone who declines a job offer, in addition to all reasons for nonselection, and must perform adverse impact analysis on hiring activity.

Interestingly, despite public comments from OFCCP Director Patricia Shiu that contractors will no longer be allowed to repeatedly settle discrimination claims "as a cost of doing business," the Consent Decrees include nonadmission of liability clauses for Tyson, as have virtually all recent Conciliation Agreements and Consent Decrees.  The Company consistently has denied the allegations.      

Previously, in October, 2010, Tyson Refrigerated Processed Meats Inc. reached a $570,000 settlement of alleged hiring discrimination, including reverse discrimination claims, against 157 African American and 375 Caucasian applicants for laborer positions at the Company's bacon processing plant in Vernon, Texas.  OFCCP investigators found that African American and Caucasian applicants were less likely to be hired than similarly situated Hispanic applicants over a two-year period.  In 2008, TNT Crust, another Tyson subsidiary based in Green Bay, Wisconsin also agreed to pay $188,000 to settle hiring discrimination claims brought on behalf of approximately 579 Hispanic applicants.  In 2006, Tyson Foods paid $1.5 million to more than 2,500 female and minority job applicants under six consent decrees.

On a related front, for those who wondered what happened with OFCCP's focus on testing, OFCCP just filed suit against Leprino Foods accusing the company of discrimination against African-American, Asian and Hispanic applicants for on-call laborer positions, challenging the contractor's use of the "WorkKeys" job skills assessment examination.  See OFCCP v. Leprino Foods Co., OALJ No. 2011-OFC-8 (Sept. 1, 2011). 

Please let us know how we can assist you with your compliance efforts and in dealing effectively with OFCCP.  In addition, WorkPlaceHR, our firm's consulting arm, stands ready to lend a hand.  Click here for our general recommendations.