Employment & Labor Insider

*Donnybrook: Named for the Donnybrook Fair near Dublin, "a notoriously disorderly event, held annually from 1204 until the middle of the 19th century." Meaning a "free-for-all; brawl; a usually public quarrel or dispute."

I promised earlier this month to have more detail about that decision by an Administrative Law Judge in the case filed against Google by the Office of Federal Contract Compliance Programs. Here is the deep dive.

As you recall, the OFCCP sued Google in December 2016 to get detailed information about its equal employment practices and affirmative action program, including compensation information. Google had already provided information to the OFCCP but contended that the additional request was overbroad and that some of the information sought was confidential.

A bench trial began on April 7, but was adjourned that same day after Google filed a motion to dismiss the OFCCP lawsuit. The motion was based on an article that had appeared in that day's edition of The Guardian. The article quoted the testimony of Janette Wipper, the OFCCP Regional Director, which included the following: “We found systemic compensation disparities against women pretty much across the entire [Google headquarters] workforce” and “We want to understand what’s causing that disparity.” The article also quoted Regional Solicitor Janet Herold -- who was not a witness at the hearing and was only peripherally involved in the case -- as saying, “The investigation is not complete, but at this point the department has received compelling evidence of very significant discrimination against women in the most common positions at Google headquarters” and “The government’s analysis at this point indicates that discrimination against women in Google is quite extreme, even in this industry.” Ms. Herold was also quoted as saying that the OFCCP was seeking “additional information to ensure the accuracy of the department’s findings, because if the findings are confirmed, this is a troubling situation.”

In its motion to dismiss the lawsuit, Google argued that, based on Ms. Herold's media comments, the OFCCP had already reached a determination that Google was in violation of Executive Order 11246, which meant that the OFCCP had already "completed" its compliance review. Therefore, Google argued, the OFCCP was not entitled to additional information from Google because its compliance review was complete.

Google contended that the OFCCP continued to press for vast amounts of compensation information only to gain additional information to “enhance its preparation for upcoming litigation on the merits.” In other words, Google alleged that the OFCCP was making an end-run around the formal discovery process and limitations associated with formal discovery in the litigation context, such as the new focus on the proportionality in discovery demands.

Interestingly, Google also contended that Ms. Herold's statements violated the California Rules of Professional Conduct. Rule 5-120 prohibits attorneys from making comments about pending litigation outside of court in certain circumstances.

In response, the OFCCP argued that (1) Ms. Herold's comments did not indicate that the investigation was complete; (2) regardless of the stage of the process, an agency’s administrative subpoena will be enforced (but apparently ignoring the fact that, unlike other federal agencies including the Equal Employment Opportunity Commission, the OFCCP has no subpoena authority); and (3) the OFCCP’s motives for requesting the information are irrelevant and unreviewable. Indeed, the OFCCP argued that it was entitled to get the material it sought regardless of its motives.

Thankfully for federal contractors, the ALJ said that a company does not give up its Fourth Amendment rights simply by entering into a federal contract. (That gem is in footnote 10 of the opinion.) He clarified that the Agency’s authority was limited to the receipt of information that was within its authority, relevant to the compliance review (with substantial deference due to the OFCCP's determination as to relevance), and not unreasonably burdensome for the contractor to produce.

Although he ultimately denied Google's motion to dismiss and found that the lawsuit could proceed, ALJ Berlin said that Ms. Herold’s statements to The Guardian complicated the issue before the court. Her comments went beyond Ms. Wipper's hearing testimony, and they could have implied that the investigation was either complete or should be. Indeed, ALJ Berlin himself questioned why the Agency should need further investigation if it had reached such a level of confidence in Google’s allegedly discriminatory pay practices.

Nonetheless, the ALJ found that Ms. Wipper's testimony, which was extensive, detailed, under oath, and subject to cross-examination, was worthy of more weight than Ms. Herold's comments to the media. Furthermore, Ms. Wipper had testified consistently on direct and cross-examination about why the OFCCP believed the additional information was necessary.

The ALJ also found that Ms. Herold had not violated the California Rules of Professional Conduct, finding that her comments did not have a “substantial likelihood of materially prejudicing the proceeding.”  But that didn't mean he approved:

. . . I question any extrajudicial statement that a Department attorney makes to the press while the matter is pending, if the statement goes beyond the public record in the pleadings and evidence adduced. The Department should be cautious not to create the appearance of chilling the constitutional rights of those who – lawfully and in good faith – choose to challenge its authority in the manner provided by law.

And

[The comments to the media] also seem inconsistent with the regulatory scheme under the Executive Order. Conciliation is a cornerstone of the regulatory scheme. The confidentiality of information gathering during a compliance review is another cornerstone. Public statements such as those here could create obstacles to conciliation, especially when they are unnecessary to protect OFCCP against prejudice and when the language is escalated.

The fact that the case has not been dismissed does not, of course, mean that Google has lost. We look forward to a definitive decision providing guidance on exactly how much information the OFCCP can demand in an audit. To be continued . . .

Image Credits: From flickr, Creative Commons license. Bench-clearing brawl by Jordan Klein. Rock-em Sock-em Robots by Ariel Waldman.