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Data would have cost the company more than $1 million to collect for a $600,000 federal contract
Federal contractors do not have to succumb to unduly burdensome information requests by the Office of Federal Contract Compliance Programs (OFCCP), a recent decision indicates.
A Department of Labor administrative law judge (ALJ) upheld Google's refusal to provide information to the OFCCP when producing the data would have been unduly burdensome.
"Contractors should be encouraged that even a large, well-known employer with extensive resources need not be held hostage by unreasonable demands by the OFCCP," said Cheryl Behymer, an attorney with Fisher Phillips in Columbia, S.C.
Data on Approximately 20,000 Employees Requested
During a compliance review initiated in September 2015, the agency sought to obtain "considerable records and information" and Google complied. The agency also required the ability to conduct an onsite inspection and to interview more than 20 Google managers; again, Google cooperated. Then the OFCCP asked for extensive data on approximately 20,000 employees. After some conciliation efforts, the parties reached an impasse and Google refused to produce the additional information.
The OFCCP demanded a compilation of interview notes on about 54,000 job interviews that would have cost Google more than $1 million to produce. Google had received only $600,000 on the government contract for which the OFCCP was conducting the review. The government contract "had a poison pill that would rob Google of the benefits of the contract: namely, compliance with OFCCP's demands will far exceed all of Google's gross revenue under the contract," the ALJ noted in the March 15 decision.
The OFCCP also requested Google to produce for each of more than 19,000 employees their base salary or wage rate; hours worked in a typical workweek; other compensation or adjustments to salary, such as bonuses, incentives, commissions, merit increases or overtime; additional data on factors used to determine employee compensation, such as education, past experience, job location, performance ratings, department or function, and salary level; documentation and policies related to compensation practices; campus hire or industry hire; competing offer; current compa-ratio; current job code and job family; current level; current manager; current organization; date of birth; department hired into; equity adjustment; hiring manager; job history; long-term incentive eligibility; market reference point; market target; name; performance rating for the past three years; referral bonus; salary history; short-term incentive eligibility; starting compa-ratio; starting job code; starting job family; starting level; starting organization; starting position; starting salary; stock monetary value at award date; total cash compensation; and any other factors related to compensation.
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Had the government paid $600 million on the contract rather than $600,000, there would have been a different analysis, the ALJ said. "But that is not the history of this contract," he added, taking the OFCCP to task for requesting any other factors related to compensation. "Google is not required to anticipate what OFCCP might someday conclude is 'related to compensation,' " the ALJ said.
Pick Your Battles Carefully
Google exhibited expected behavior of a government contractor until the OFCCP's request became unduly burdensome. The company also felt the need to protect the privacy of its employees by not revealing names, in addition to objecting to the scope and breadth of the OFCCP's request, said Alissa Horvitz, an attorney with Roffman Horvitz in McLean, Va.
"Pick your battles with OFCCP carefully," she said. "Expect to have to provide information early on. But if the OFCCP is not going to respect employee privacy and is not going to narrow down its requests and is not going to be transparent with the employer as to why the OFCCP needs the information, the employer should realize that there is some precedent to push back."
"The company would have been required to retrieve detailed historical data about some of the Google employees who may have been employed when Google was incorporated in 1998," Behymer said. "The ALJ found that the OFCCP had failed to show how this data was relevant to a compliance review occurring 19 years later."
She added that the Google decision "should provide a comfort level for contractors who may have been feeling bullied by the OFCCP" following rulings emphasizing that the OFCCP's requests do not violate the Fourth Amendment. (See United Space Alliance LLC v. Solis, No. 11-746 (D.D.C. 2011) and OFCCP v. Convergys Customer Management Group Inc., 2015-OFC-00002 through 2015-OFC-00008 (DOL 2015).) "This decision says that the agency has some legitimate leeway but that it is not unlimited," she said. "Unfortunately, contractors must still be prepared to incur attorney fees to fight this kind of fight, so they should still weigh the burden of producing the requested information with the cost of litigating the issue."
This case is OFCCP v. Google Inc., No. 2017-OFC-00004.
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