Google May Be Pressed to Turn Over More Pay Data in Bias Probe

Aug. 29, 2017, 10:17 PM

By Chris Opfer and Jay-Anne B. Casuga, Bloomberg BNA

The Labor Department wants an appeals panel to force Google to turn over more worker salary information in an ongoing investigation into alleged pay disparities at the tech giant’s California headquarters.

DOL lawyers Aug. 24 asked the department’s administrative review board to order Google to turn over salary histories for some 25,000 workers, dating back to the company’s formation in 1998. An administrative law judge last month blocked the request but said Google had to give the DOL a separate “snapshot” of pay, job duties, and other information for 21,000 workers from 2014.

The Labor Department says it has already uncovered “systemic compensation disparities against women pretty much across the entire workforce” at Google as part of an Office of Federal Contract Compliance Programs audit of federal contractors. ALJ Steven Berlin in the July decision called the allegation “legally questionable and factually unsupported at this point.”

“We believe the decision here was well-reasoned, thorough and should be upheld,” Google spokeswoman Gina Scigliano told Bloomberg BNA via e-mail. “We’ve already produced hundreds of thousands of documents to the OFCCP in this matter and believe, as the judge ruled, that they have adequate information to do their analysis, with the few additional records the Court asked us to produce.”

The appeal comes weeks after Google found itself in the center of a media firestorm over its diversity policies. The company fired engineer James Damore for a manifesto criticizing the company’s culture and pushing stereotypes that Damore said explain differences between men and women workers.

Damore has filed a National Labor Relations Board complaint against Google for wrongful termination. The company is also facing an NLRB complaint from an unidentified worker who said Google threatens and monitors employees who discuss their pay online.

The Labor Department’s OFCCP audits federal contractors—identified in a “neutral selection process”—to ensure compliance with pay discrimination regulations and other worker protections. Google has worked on a number of government contracts, including with the General Services Administration, the Commerce Department, and the Department of Defense.

Labor Department spokesman Michael Trupo declined to comment for this story.

New Administration, Same Approach?

The Labor Department says it needs the salary history information to determine whether some Google workers were trapped in a cycle of lower pay rates based on their previous salaries, or what department officials called an “anchoring bias.” Berlin said he will not force the company to turn over the data unless the department shows that the request is reasonable, relevant and not “unduly burdensome.”

“I don’t know anything personally about Google’s underlying employee data systems and practices, but I would expect them to be better than most,” Pamela Coukos, a former Obama administration Labor Department program manager, told Bloomberg BNA. “And in my experience understanding what’s happening for women in terms of starting salary is an important aspect of investigating gender-based pay disparities in a professional workforce.”

The investigation is being conducted by the OFCCP’s Pacific Region, which in recent years has been considered more aggressive than other regional offices in efforts to root out discrimination at government contractors. The region brought in about one-fifth of the total settlement money stemming from OFCCP audits of companies that do business with the federal government in the last two years, according to Bloomberg BNA’s analysis of government data.

Some contractor advocates hope that the OFCCP may eventually take a more business-friendly, compliance-oriented approach to enforcement of pay discrimination and other federal requirements.

But others told Bloomberg BNA that they aren’t surprised the agency is pursuing the appeal despite the change in administration. The OFCCP historically has taken an “aggressive position” in “denial of access” cases, Christopher Wilkinson, a former DOL associate solicitor for labor-management, told Bloomberg BNA.

The agency brings such actions against contractors that don’t provide requested data during audits or that block on-site reviews. Those cases, like the one involving Google, generally turn on what the agency may request from businesses without bumping into Fourth Amendment protections against unreasonable government searches.

DOL’s long-running hiring discrimination case against Bank of America, for example, included access issues, many of which were litigated during the George W. Bush administration, said Wilkinson, now a partner with Orrick, Herrington & Sutcliffe in Washington. The bank and agency ultimately reached a settlement in April after more than two decades of litigation.

“Any administration is going to seek to extend its authority at least from an access standpoint, mainly because the authority of the agency is at issue,” Wilkinson said.

All Eyes on Tech Sector

The Damore saga and the ongoing Labor Department investigation have put Google, and the tech sector as a whole, in the spotlight. Kellie McElhaney, a business and social impact professor at the University of California Berkeley, said the biggest diversity issue for tech companies may not be recruiting women workers but rather convincing them to stay on the job.

“Getting women in the tech workforce is the start, but they don’t feel like its an inclusive environment,” McElhaney told Bloomberg BNA. “They are not seeing themselves in higher, executive type positions in those companies.”

Google made the smart move by firing Damore shortly after his memo came to light, McElhaney said. But the company may have also nipped an important conversation about stereotypes in the bud by acting so quickly, she said.

“The chill they put on the conversation may work against longer-term goals,” McElhaney said. “While I strongly disagree with Damore’s memo, I think the worst thing we can do is to not have an intellectual conversation.”

To contact the reporter on this story: Chris Opfer in New York at copfer@bna.com; Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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