Employment & Labor Insider

The hearing on the lawsuit filed by the Office of Federal Contract Compliance Programs against Google concluded on Friday, May 26, in San Francisco. As I’ve reported here, here, and here, the OFCCP is seeking historical pay data as well as names and contact information of approximately 21,000 employees.

The OFCCP believes that Google has “systemic compensation disparities against women.” Google denies any discrimination, and says that the OFCCP’s request is overbroad to the point of violating the Fourth Amendment prohibitions against unreasonable searches – in addition to violating the privacy rights of the employees.

It appears that the OFCCP may be focusing on Google’s alleged use of salary history in making compensation decisions. Frank Wagner, Google’s director of compensation, testified that Google does not consider salary history in making compensation decisions, but he reportedly acknowledged that Google does ask for the information and will sometimes offer more in certain economic “perks” – including sign-on bonuses or stock options – based on what the candidate was getting in his or her former position.

As Kacy Coble of our Memphis Office recently blogged, a number of state and local governments have made it unlawful for employers to ask for salary history information, much less to use it in setting salaries, on the ground that it can perpetuate sex-based compensation discrimination. However, requesting salary history does not violate federal law, and even using the information would not violate federal law unless the employer had discriminatory intent or the use of salary history was shown to have a disparate impact on a protected category of employee.

Google attorneys argued that the information sought by the OFCCP would require retrieval of 1.3 million data points and more than 740,000 pages. Google says that it has already spent more than 2,300 hours and approximately $500,000, and projects that gathering all of the information demanded by the OFCCP would require approximately 500 additional hours and an additional $100,000.

(As a reminder, the original contract at issue has grossed Google only about $600,000, but the OFCCP has argued that the contracts could be worth millions of dollars.)

The OFCCP didn’t demonstrate any sympathy for Google. According to news reports,  DOL attorney Ian Eliasoph accused Google of claiming to be “too big to comply” and argued that “Google would be able to absorb the cost [of complying with the OFCCP’s requests] as easy as a dry kitchen sponge could absorb a single drop of water.”

Administrative Law Judge Steven B. Berlin indicated his willingness to accept closing briefs from both sides. We’ll be back with the ruling as soon as we have one . . .