In a highly unusual victory by the employer, Google beat back the Office of Federal Contract Compliance Programs (OFCCP) attempt to force them to respond to an exhaustive data request. The case started as a regularly scheduled compliance review of Google’s headquarters by letter dated September 20, 2015. In the course of the audit indicators arose. Google had a $600,000 federal contract with the General Services Administration it won in 2014.
For nearly a year, the parties were able to agree on extensive information and documentation that Google would give OFCCP for this audit. Google also made available a number of managers for OFCCP investigators to interview. The focus of the audit became compensation.[1] In June 2016 OFCCP then requested additional information beyond what was required in the scheduling letter.[2]
OFCCP allegedly found “systemic compensation disparities against women pretty much across the entire workforce.” OFCCP then asked for a snapshot with job and salary histories for employees, going back for each employee to the date of hire – even if that was 18 years earlier, when Google was formed.
Google requested more information as to what the investigation was about, and OFCCP refused to provide it. Google then pushed back through its lawyers, Jackson Lewis. OFCCP then sued based on failure to allow access to records. At the hearing it was the first time Google stated that that it heard OFCCP disclose this information. At the hearing OFCCP offered no evidence as to whether the disparity it found was statistically significant. Further, OFCCP had stated that it had not determined any violations yet by Google.
The question before the Administrative Law Judge was whether OFCCP’s data requests met Fourth Amendment’s requirements similar to the issuance of a subpoena for data production. The data requests were part of a normally scheduled audit, not an investigation. Therefore, the requests must be reasonable in that that are relevant to the investigation, sufficiently limited in scope, and not unduly burdensome. Google argued that the requests were not reasonable and were unduly burdensome.
Based on the testimony adduced, The Administrative Law Judge (ALJ) considered the testimony of the Google representatives as quite credible, going into great detail how the data would be collected and how the compensation process works. OFCCP’s testimony was not considered credible. It came out that OFCCP’s understanding of Google’s organizational structure and pay policies and practices was lacking. Google had been following a complex and carefully conceived compensation plan since at least April 2007. No demographic information about a new hire or a promotion is provided to the “compensation team” that sets the salary for new hires and promotions. Moreover, it was found that Google’s merit pay increases are calculated to bring convergence to the pay for workers who are performing equally in the same job.”
Google had produced nearly 1.3 million data points about its applicant flow; 400,000 to 500,000 data points on compensation; and 329,000 documents totaling about 740,000 pages. The project cost Google about $500,000, a significant amount when compared to the $600,000 gross total that GSA paid Google under the AIMS contract from June 2014 through December 29, 2016. Google expended about 2,300 person hours on these tasks including bringing in an outside contractor. In the opinion of OFCCP’s expert, a cost of $1 million for Google to comply with OFCCP’s demands would have no meaningful impact on Google’s business. The ALJ did not agree with OFCCP. The company’s profitability is not relevant when determining the burden of the production.
In the end the ALJ denied the majority of the requests by OFCCP, allowing only that the 2014 data provided must be similar in scope to the scheduling letter and what was provided by Google previously. If the data was not available, Google did not have to provide it. As to the employee list, Google was required to provide it; however, OFCCP was cautioned that it was only to be used to decide who to conduct follow-up interviews with. It also required OFCCP to safeguard the security of the information.
Finally, the ALJ ruled that “[t]he record shows that OFCCP has not taken sufficient steps to learn how Google’s system works, identify actual policies and practices that might cause the disparity, and then craft focused requests for information that bears on these identified potential causes. Without this, the requests become unreasonable: unfocused, irrelevant, and unduly burdensome.” The ALJ, without directly stating it, recognized that OFCCP was doing a fishing expedition. The loss was the first in a long line of access cases. OFCCP may appeal.
[1] Under Item 19 of the standard scheduling letter, OFCCP requests contractors to provide information on the AAP workforce snapshot gender, race/ethnicity, hire date, job title, EEO-1 category, job group, base salary or wage rate, hours worked in a typical workweek, and other compensation or adjustments to salary (bonuses, incentives, commissions, merit increases, locality pay, and overtime). It also requests that any other additional factors that may play a role such as education, experience, etc. may be included.
[2] This request included name, date of birth, bonus earned, bonus, period covered, campus hire or industry hire (i.e., hired directly out of school or from another employer), whether the employee had a competing offer, current “CompaRatio,” current job code, current job family, current level, current manager, current organization, department hired into, education, equity adjustment, hiring manager, job history, locality, long-term incentive eligibility and grants, market reference point, market target, performance rating for past three years, prior experience, prior salary, referral bonus, salary history, short-term incentive eligibility and grants, starting CompaRatio, starting job code, starting job family, starting level, starting organization, starting position/title, starting salary, stock monetary value at award date, target bonus, and total cash compensation, and “any other factors related to Compensation.” Googled complied mostly between August 2016 and February 2017.
Source: OFCCP v. Google Inc., No. 2017-OFC-00004 (July 14, 2017)