Alex Drummond and William Miles Published in Law360
"Expanding the Protections of the 4th Amendment"

Seyfarth Shaw Atlanta partner Alex Drummond and senior counsel William Miles wrote an article published in Law360 on February 3. The article discussed the recent decision in Bank of America v. Hilda L. Solis, in which the court extended the protections of the Fourth Amendment to the U.S. Constitution, which guarantees the "right of the people to be secure in their persons, houses, paper and effects against unreasonable searches and seizures," to the Office of Federal Contract Compliance Programs (OFCCP). The authors note, "The ruling underscores the stakes -- and considerable legal issues -- underlying governmental workplace enforcement actions."

When the OFCCP contacted Bank of America for a desk audit, the bank cooperated, requesting that the OFCCP first demonstrate how the agency selected the bank's specific North Carolina facility. The OFCCP complied, and then proceeded to ask for an on-site review. When the bank asked for evidence to show why the OFCCP requested an on-site review, the agency filed an enforcement action with the U.S. Department of Labor. It was discovered that the OFCCP had not complied with its initial, neutral selection process, violating Fourth Amendment rights. While the DOL rejected the bank's arguments, the U.S. District Court for the District of Columbia ruled that the OFCCP was not entitled to the information requested as part of the desk audit under the Fourth Amendment. However, the court determined that the OFCCP had legally obtained the information as part of the desk audit because the bank voluntarily produced the documents initially requested by the OFCCP.

They write, "The Bank of America decision is a positive development for employers because it extends the Fourth Amendment's probable cause requirement to the government's requests for documents during workplace investigations." When the OFCCP selected Bank of America for a desk audit, the bank asked that the government prove that it was selected through the agency's selection process, and it was not chosen arbitrarily.

Alex and William point out that "the decision makes clear…that an employer must be diligent in protecting these Fourth Amendment rights or else it risks a ruling in a future enforcement action that it has waived those rights."