Sept 10 (Askume) – Cleaning services company ABM Industry Groups (ABM.N) is suing the U.S. Labor Department, claiming the agency’s administrative action to impose anti-discrimination requirements on federal contractors is unconstitutional.
ABM said in a complaint filed Monday in federal court in Houston that internal procedures violated the constitutional right to a jury trial and that administrative law judges in the Labor Department’s Federal Contract Compliance Programs office were improperly protected from removal by the U.S. president.
OFCCP enforces executive orders prohibiting federal contractors from discriminating on the basis of race, sex, and other characteristics and from retaliating against workers engaging in protected activities.
ABM is trying to stop a 2021 case brought by the Department of Labor that accused the company of providing preferential treatment to Hispanic job applicants over white or Black job applicants, which the company denies.
In light of the U.S. Supreme Court’s June decision in Jarexy v. Securities and Exchange Commission , the lawsuit is at least the third in the past month claiming that the Labor Department’s actions violated the U.S. Constitution.
The judge in the Jaxy case held that the SEC’s imposition of civil penalties in administrative financial fraud cases violated the jury trial guarantee in the Seventh Amendment to the U.S. Constitution.
Comcast and Purdue Farms filed a lawsuit last month claiming the administrative whistleblower case before a Labor Department judge was unconstitutional.
The Labor Department did not immediately respond to a request for comment on Tuesday.
ABM’s suit alleges that OFCCP administrative judges exercise executive power and are therefore constitutionally accountable to the president. Currently, judges can only be removed by recommendation of the federal Civil Service Commission, which is not directly controlled by the White House.
In the Jersey case, the New Orleans-based 5th U.S. Circuit Court of Appeals ruled in 2022 that SEC administrative judges are protected from wrongful removal . The Supreme Court did not address the issue but upheld the Fifth Circuit’s separate ruling regarding civil penalties.
The case is ABM Industry Group v. U.S. Department of Labor, U.S. District Court for the Southern District of Texas, No. 4:24-cv-03353.
ABM Representatives: Katherine Eshbach and Michael Kennelly of Morgan Lewis & Bockius, Alexa Morgan and Jay Wang of Fox Wang & Morgan
For DOL: Not Available
Read more:
The U.S. Supreme Court has rebuked the Securities and Exchange Commission for using in-house judges in recent restrictions on the agency’s powers.
Appeals court rules SEC in-house judge violates right to jury trial
