ALJ determines that much of OFCCP’s request is burdensome and does not need to be provided by Google
In this denial of access case against Google brought by OFCCP, Administrative Law Judge Steven B. Berlin ruled that OFCCP’s request was not reasonable and was unduly burdensome. He stated “I will order Google to provide only some, but not all, of what OFCCP seeks.”
OFCCP began an audit of Google’s headquarters operations in September 2015. During the following year, Google responded to OFCCP’s extensive information and document requests and even made available managers for interviews.
In June 2016, in response to two additional requests, Google agreed to produce some of the information but protested the remainder. OFCCP and Google compromised on several of the requested information but reached an impasse on three of them pertaining to compensation. OFCCP claimed that even though they were not making a finding of unlawful discrimination, that an indication of a disparity was the reason for requesting more information.
OFCCP’s Various Data Requests
The data request required Google to collect, organize and produce data in about 14 categories, those identified in the OMB approved scheduling letter, for each of the approximately 21,000 employees at its headquarters location on the snapshot date of September 1, 2015. In November 2015, Google produced this information. In June 2016, OFCCP requested that Google submit additional data, beyond what was approved by OMB, which included: name, date of birth, bonus earned, bonus period covered, campus or industry hire, whether the employees had a competing offer, current compa-ratio, current job code, current job family, current level, current manager, current organization, department hired into, education, equity adjustment, hiring manager, job history, locality, long-term incentive eligibility and grants, market reference point, market target, performance rating for the past 3 years, prior experience, prior salary, referral bonus, salary history, short-term incentive eligibility and grants, starting compa-ratio, starting job code, started job family, starting level, starting organization, starting position/title, starting salary, stock monetary value at award date, target bonus, total cash compensation, and “any other factors related to compensation.” In September 2016, OFCCP asked for the following additional information: employee ID, country of citizenship, secondary country of citizenship, visa (yes/no), visa type, and place of birth. Google produced this data in February 2017.
What led to this litigation was OFCCP’s additional request for the same information to be provided for one year earlier – September 1, 2014 – at which time when Google employed 19,539 people at its headquarters location. OFCCP also requested a salary and job history of each employee going back to the founding of the corporation in 1998 for any long-term employees. Lastly, OFCCP wanted the name, address, telephone number and personal email of every employee listed in either the 2014 or 2015 snapshot data. OFCCP Regional Director Janet Wipper explained that OFCCP needed to go back as far as 19 years “because OFCCP must look at every decision that impacted pay.”
OFCCP’s Justification of the Requests
OFCCP stated that it analyzed the September 2015 snapshot data using multiple regression analyses and found “systemic compensation disparities against women pretty much across the entire workforce.” OFCCP claimed that given the disparity found in the 2015 data, it needed “data for a second point in time to determine whether the disparity was ongoing throughout the two-year review period.”
After using both in house and external legal support, Google expended about 2,300 person hours to pull the requested information. Much of the work involved Google engineers having to develop tools to access information since Google houses individual applicant and employee information in different locations to protect employee privacy. Google claims that it produced 844,560 compensation data points for its employees on the snapshot date. OFCCP offered evidence to show that Google is “economically easily capable of complying with OFCCP’s requests; the cost will be insignificant compared to Google’s resources.” However, Google provided testimony to show the expense and intrusion on its business operations.
The amount of information requested made this ongoing audit one of the ten largest in the Pacific Region that OFCCP has conducted primarily because the employee headcount totaled more than 21,000.
Determining if OFCCP’s three requests were reasonable under the Fourth Amendment? ALJ Berlin looked at Director 307 since it provides guidance on the conduct of compensation audits. He stated that “applying this regime, OFCCP should be able to identify specific areas that are relevant to its investigation rather than willy-nilly search anywhere and everywhere for practices that might be causing a disparity in the compensation data.”
In its justification as to why it requested the 2014 snapshot data request, OFCCP simply stated that “OFCCP generally starts with a single snapshot and then asks for a second only when the first snapshot indicates disparities.” Wipper offered nothing more than this conclusory statement and refused any explanation of its analysis, stating process privilege.
• Within 60 days of signing the order, Google must provide the items requested from the scheduling letter (and approved by OMB) for the September 2014 snapshot. ALJ Berlin deemed them to be relevant and not burdensome. • Requests for date of birth, place of birth, citizenship and visa status exceed OFCCP’s authority and are “not relevant to the characteristics that EO 11246 protects” and need not be provided by Google. • Google does not need to provide in the September 2014 snapshot information on department hired into, job history, salary history, stating compa-ratio, starting job code, starting job family, starting level, starting organization or starting salary. • Google does not need to provide information on employee locality information because it is unduly burdensome. • With regard to the request for employee’s personal contact information, OFCCP must take reasonable steps to protect the information it obtains and limit the request for contact information to 5,000 employees.
The ALJ found that it “is unreasonable in that it is over-broad, intrusive on employee privacy, unduly burdensome, and insufficiently focused on obtaining the relevant information.” However, he does accept OFCCP’s need to obtain anecdotal information but is concerned that the information being held at OFCCP will be “secure from hacking, OFCCP employee misuse, and similar potential intrusions or disclosures.” The ALJ was also worried about how OFCCP’s intrusion into Google’s employees’ privacy will have on Google’s relationship with its employees.
In his evaluation of the fact, ALJ Berlin found the Google representative to be credible and knowledgeable but found that Deputy Regional Director Suhr “lacked the foundation and understanding I observed from [Frank] Wagner.” He also found Regional Director Wipper “generally – though not uniformly – credible in the sense that she was truthful” but “there were occasions on cross-examination when Wipper was evasive, as though she was advocating.”
In summary, ALJ Berlin determined that the OFCCP requests imposed without rationale a burden on Google. He stated “If OFCCP accurately understood Google’s practices or had evidence to refute – or at least bring into questions – Google’s statement of what those practices are or have been, OFCCP could have made an entirely different showing on relevance. Lacking that, OFCCP’s showing fails as ungrounded speculation.”