Google Stands Up to OFCCP in Compensation Lawsuit

By Allen Smith, J.D. Jan 6, 2017
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Google has provided the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) with "hundreds of thousands of records" over the last year but was sued Dec. 29 for not handing over documents that would reveal private employee contact information, according to the technology company.

On Sept. 30, 2015, the OFCCP sent Google a letter stating that the agency had selected its headquarters office in Mountain View, Calif., for a compliance evaluation to determine if there were incidents of gender compensation discrimination or other violations of its nondiscrimination and affirmative action program. Google is required to maintain such a program because it performs work for the federal government as a contractor. The agency asked for job titles and salary histories for employees in a Sept. 1, 2015, compensation snapshot, which Google provided. It also requested a compensation snapshot as of Sept. 1, 2014, and the names and contact information for employees working for the company in 2014 and 2015.

Google refused to provide the names and contact information. The OFCCP sued, claiming a violation of Executive Order 11246, the Rehabilitation Act and the Vietnam Era Veterans' Readjustment Assistance Act.

[SHRM members-only HR Q&A: Affirmative Action: General: What is an affirmative action program?]

OFCCP Acting Director Thomas Dowd said, "Like other federal contractors, Google has a legal obligation to provide relevant information requested in the course of a routine compliance evaluation. Despite many opportunities to provide this information voluntarily, Google has refused to do so. We filed this lawsuit so we can obtain the information we need to complete our evaluation."

Privacy

"We're very committed to our affirmative action obligations and to improving the diversity of our workforce and have been very vocal about the importance of these issues," said a Google spokesperson. "As a federal contractor, we're familiar with our obligations and have worked collaboratively with the OFCCP. We've worked hard to comply with the OFCCP's current audit and have provided hundreds of thousands of records over the last year, including those related to compensation."

But, the spokesperson added, the OFCCP requests that are the subject of the complaint are overbroad or reveal confidential data. "These requests include thousands of employees' private contact information, which we safeguard rigorously," the spokesperson said.

"Most employers are highly concerned about the confidentiality of this data because, time and time again, we have heard about breaches of government databases from individuals and foreign governments," said Alissa Horvitz, an attorney with Roffman Horvitz in McLean, Va. "Most government contractors would never include employee names in any data supplied to OFCCP." Instead, the data usually is transmitted using employee identification numbers in a password-protected file or on an encrypted flash drive.

However, some OFCCP offices are not able to use such methods of secure data transfer, "which leaves employers with few secure options to protect this data from disclosure," she said. "It's a very grave and legitimate concern for most companies."

Overly Broad Request

Privacy wasn't Google's only concern. It also said the request for compensation information was too broad.

"The OFCCP also does not appear to have narrowed its data requests to job codes or job titles that reveal unexplained differences in pay," Horvitz said. "The OFCCP appears to be asking for a massive amount of data on every single employee, which is overbroad."

By seeking 2014 data, the OFCCP may get data on people who no longer work for the company, she noted. Plus, the data will not include people who hadn't yet been hired, so there would be a mismatch between the data set on which Google is being audited and the additional compensation that the OFCCP is seeking.

Since a 2013 OFCCP directive revealing an increased focus on compensation disparities, audited contractors have seen "a much deeper inquiry regarding their compensation practices," said Cheryl Behymer, an attorney with Fisher & Phillips in Columbia, S.C. "But there are differences in how the various offices approach the depth and breadth of the follow-up questions," she noted.

If the OFCCP has identified potential indicators of discrimination, it often seeks to expand the data request to the prior year. The agency often restricts follow-up requests to potential problem areas, though, since the data retrieval is time-intensive for employers, Behymer observed.

"Many employers just comply with OFCCP's requests, even where they believe they are overbroad and overly intrusive into employee privacy," she noted.

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