Google’s Pay-Data Fight With Labor Department Dropped (2)

The Labor Department has dropped its appeal in a case seeking employee pay history from Alphabet Inc.'s Google.

A DOL appeals board Feb. 1 granted the agency’s voluntary request for dismissal. An administrative law judge held in 2017 that it would be too burdensome for Google to turn over the salary histories of about 25,000 workers dating back to the company’s formation in 1998. The data request was made during an Office of Federal Contract Compliance Programs audit of the company’s headquarters in Mountain View, Calif.

The judge, however, said Google had to give the office a separate “snapshot” of pay, job duties, and other information for roughly 21,000 workers from 2014. The appeal’s dismissal means the OFCCP’s audit of Google will continue, consistent with the ALJ’s 2017 ruling.

The agency appealed that decision to the DOL’s Administrative Review Board in August 2017, contending that indicators of widespread pay disparities at the tech giant justified its data request. Google’s lawyers countered that the OFCCP’s requests were “extreme” and “unsupportable.”

The OFCCP weighed in with Bloomberg Law about its decision. “After careful consideration, OFCCP has decided to enforce the ALJ order and complete its compliance review on the merits consistent with the terms of its newly issued directives on transparency and Predetermination Notices,” OFCCP director Craig Leen said in an email. “OFCCP views this as the most effective means of reaching final resolution with Google.”

The agency hasn’t come to a settlement agreement with Google, a source with direct knowledge of the situation told Bloomberg Law.

The OFCCP hasn’t formally accused the company of any wrongdoing yet, though a former regional director used the agency’s findings of “systemic compensation disparities against women pretty much across the entire workforce” as justification for the request in public testimony.

A Google spokesperson told Bloomberg Law that the company has produced more than 329,000 documents over 18 different data requests related to the audit and consequent litigation. Google also expressed confidence in its pay methodology, asserting that it does not have a gender pay gap.

New Appointments

The withdrawal of the appeal comes about a month after the Labor Department appointed three new members to the ARB, chosen from within the agency.

This could be one reason the OFCCP decided to alter its litigation course, Fortney & Scott lawyer Mickey Silberman told Bloomberg Law.

“We don’t yet know how the new ARB members are going to respond, not just to the ALJ’s decision in this case, but other decisions generally,” he said.

The new members are a “blank slate” for both the Labor Department and employers, Silberman said. And it’s reasonable to expect that the OFCCP would only want to go forward with an appeal that it feels confident about, before a completely new board.

The ALJ decision granted the agency some victories in 2017, approving certain additional data requests, but it denied the agency its “everything under the sun” data demands, he said.

“To continue to pursue the appeal would actually be inconsistent with the agency’s newly announced approach of transparency, efficiency, and a narrowed and more precise focus in audits,” he said.