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Company convinces court to deny access to other data
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In its ongoing audit of the compensation practices at Google, the Office of Federal Contract Compliance Programs (OFCCP) won access to at least 5,000 workers' personal contact information for those employed in 2014 or 2015. It may get an additional 3,000 employees' personal contact information at a later date, a U.S. Department of Labor administrative law judge (ALJ) ruled. But while it gained this partial access to personal contact information, the OFCCP was denied access to the contact information of all 25,000 workers employed in 2014 and 2015.
Some employment lawyers were encouraged by the decision, while others criticized it.
The decision "closes the door on an 'anything goes' compliance audit," said Linda Jackson, an attorney with Arent Fox in Washington, D.C. "It closes the door on the concept that the OFCCP is in 100-percent control of the information request process."
But Alissa Horvitz, an attorney with Roffman Horvitz in McLean, Va., said, "Presumably OFCCP is going to contact these employees by e-mail to gauge their willingness to participate in interviews. Google will not have any representatives in these OFCCP interviews."
Release of All Contact Information Denied
The OFCCP maintained that accessing the personal contacts, among other information, was relevant to its investigation into Google's pay practices. It found "systemic compensation disparities against women pretty much across the entire workforce," noted ALJ Steven Berlin.
Google opposed the disclosure of personal contact information for its employees for privacy reasons; it was concerned about possible data security breaches at the OFCCP, the ALJ said in his July 14 opinion. "This office [the Office of Administrative Law Judges] has been hacked," he noted. "Despite the efforts it has made, the federal government generally and the Department of Labor in particular are not immune to hacking or to the improper release ('leaking') of confidential, private materials about people involved in departmental investigations."
In addition, the Google employees would have their personal contact information revealed to another federal government agency without their permission, the ALJ said. If Google turned over the information to the government, it could lose employees' trust, he added.
But anecdotal information obtained from employees is relevant to the OFCCP's investigation, the ALJ observed.
"Although the OFCCP did not provide an estimate of how many employees it might actually interview, I find based on my extensive experience litigating civil rights and employment cases—both as a government attorney and as a private-sector attorney—as well as adjudicating these cases, that the OFCCP likely will interview no more than 100 to 300 employees," the ALJ said. "There is no indication that the OFCCP has the resources or would choose to interview more. The OFCCP can hide in plain sight the identities of that many employees in a list of 5,000, rather than 25,000." In addition, the OFCCP must be allowed to choose the 5,000 employees whose contact information it will get and might be entitled to follow-up information depending on the results of its initial interviews, the ALJ said.
Other Information Requests Denied and Granted
The ALJ denied the OFCCP access to salary history information going back to the company's founding in 1998, although the Department of Labor on Aug. 24 asked the administrative review board to order Google to provide salary histories for some of its workers, reports Bloomberg BNA.
The ALJ also denied access to some of the information Google had refused to provide on its 19,539 employees in 2014.
For example, the ALJ rejected the OFCCP's request for each employee's date of birth. "Age discrimination is not an area of enforcement within the OFCCP's authority," the ALJ noted.
But Google will have to produce information on many of the 38 requested factors for 2014—factors that the company already had provided for 2015 at an expense of $500,000. Google argued that such an expense was too burdensome, given that it was paid only $600,000 for the federal government contract that gave rise to its obligation to comply with OFCCP regulations.
[SHRM members-only toolkit: Managing Federal Contractor Affirmative Action Programs]
Among the 38 data points the OFCCP sought for each employee in 2014 that Google must disclose are:
Despite denying the OFCCP's request across the board for contact information, "the OFCCP was entitled to a substantial amount of additional data from Google regarding all employees in the workforce going one year back from the date of the data that Google previously produced," Horvitz said. "The breadth, scope, cost and burden of what the OFCCP was seeking from Google was tremendous."
Cooperate but Push Back When Necessary
"Continue to be cooperative" with the OFCCP when it conducts investigations, Jackson recommended.
"Given the broad latitude that the OFCCP has in auditing federal contractors and subcontractors, contractors will not likely be on firm ground refusing to respond to the OFCCP's first request or even a second request for information," said Clyde Jacob, an attorney with Coats Rose in New Orleans.
But this decision "signals that companies are entitled to ask the OFCCP for its reason for its request for additional data when it becomes burdensome," said Cheryl Behymer, an attorney with Fisher & Phillips in Columbia, S.C.
"Under the current acting director, Thomas Dowd, the agency has pledged to be more open and transparent," so it may be more open about justifying why it needs information requested during an audit. "Many compliance officers and district offices are willing to work with the contractor to find a compromise position," she noted. That way, the agency will have sufficient data to make its determination without subjecting the contractor to thousands of hours and dollars spent to retrieve data that may not be relevant.
This decision is OFCCP v. Google Inc., No. 2017-OFC-00004.
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