OFCCP versus Google: The battle continues.

I posted in January about a lawsuit filed by the Office of Federal Contract Compliance Programs against Google, seeking to force Google to provide detailed information about its equal employment practices and affirmative action program, including compensation information. Google had already provided some information to the OFCCP but contended the information that it withheld was either confidential or subject to overbroad requests.KMS

The battle rages on.

The OFCCP filed a motion for summary judgment, which was denied by Administrative Law Judge Steven B. Berlin on March 15. In essence, ALJ Berlin viewed the Agency’s motion for summary judgment as "akin to a subpoena enforcement proceeding." Although he denied the motion on procedural grounds (the case was scheduled for expedited hearing, which does not provide for summary judgment motions), he went on to state, “Even were I to reach the merits of the motion, I would deny it.”

The ALJ found that the Fourth Amendment applied to the OFCCP's request for information and therefore that the request had to be “limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.” He noted that Google had received only $600,000 under the federal contract in a two-and-a-half-year period. Meanwhile, the cost to Google of gathering the information responsive to only one of the OFCCP's requests was estimated by Google to be about $1 million. (This was to compile notes from approximately 54,000 job interviews.) The ALJ said that his analysis might have been different if Google had received $60 million under the contract instead of $600,000.

The ALJ's decision was good for employers, but not completely. ALJ Berlin found that the data requested by the OFCCP was relevant, applying a standard of review that was deferential to the Agency. This highlights the importance for federal contractors to preserve pay history information, and to preserve job applications and interview notes, for the periods prescribed by applicable law.

The denial of summary judgment meant that the issue went to a trial on April 7 before ALJ Berlin. According to testimony by Janette Wipper, a Regional Director for the U.S. Department of Labor, the OFCCP had “found systemic compensation disparities against women pretty much across the entire workforce.” Google's attorney argued that the OFCCP’s requests were unconstitutional and a “fishing expedition that has absolutely no relevancy to the compliance review.”

That same afternoon, the judge halted proceedings, and gave Google until April 14 to file a motion under seal. According to a post on the Workplace Dynamics, LLC, website, the judge said that an unspecified issue "that was discussed must be settled before continuing." After the postponement, Google issued the following statement to The Guardian: "Every year, we do a comprehensive and robust analysis of pay across genders and we have found no gender pay gap. Other than making an unfounded statement which we heard for the first time in court, the DOL hasn’t provided any data, or shared its methodology.”

Whatever it was that caused the postponement, it does not appear to be an amicable settlement between Google and the OFCCP. We will keep you updated.

UPDATE (5/4/17): That didn't take long! Bloomberg BNA reported last night that ALJ Berlin denied a motion by Google to dismiss the OFCCP complaint. Here is a copy of the decision. Google's motion was based on comments made by Regional Solicitor Janet Herold to the media on April 7, and it turns out that these comments were the reason for the abrupt adjournment on April 7. Ms. Herold was quoted in The Guardian 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," "The government's analysis at this point indicates that discrimination against women in Google is quite extreme, even in this industry," and "if the findings are confirmed, this is a troubling situation." Although the ALJ did not find that Ms. Herold's media comments should result in dismissal or that Ms. Herold had acted unethically, he was nonetheless critical of her statements, saying, "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 judge's decision is worth a more detailed blog post, so I'll be following up with more.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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