OFCCP experiences another setback
A Department of Labor Administrative Law Judge (ALJ) denied summary judgment against Google because in the previously granted expedited proceedings, the parties and the ALJ “have little time to prepare for the hearing on the merits and cannot devote resources to the kind of extensive briefing that the parties filed here,” the ALJ wrote. The ALJ also noted that much of the OFCCP’s data demands were unduly burdensome. As a matter of act, he indicated that the cost of meeting the OFCCP’s data demands would greatly exceed the revenue generated from Google’s government contract. OFCCP’s argued that Google has huge resources [reported revenues of $90 billion in 2016]; however, the ALJ did not find this relevant to the request.
In the original complaint, OFCCP asserted that Google violated the laws enforced by the agency and breached its obligations when it refused to provide the requested information as part of a routine compliance evaluation of its headquarters location. Google claimed that “the handful of OFCCP requests” which is subject of the lawsuit by the agency “are overboard in scope, or reveal confidential data,” and that the company attempted to communicate this to the agency.
To support the review in September 2015, and on June 1, 2016, the OFCCP request included:
• A compensation snapshot as of September 1, 2014;
• Job and salary history for employees in a September 1, 2015 compensation snapshot that Google had produced and the requested September 1, 2014 snapshot, including starting salary, starting position, starting "compa-ratio," starting job code, starting job family, starting job level, starting organization, and changes to the foregoing; and
• The names and contact information for employees in the previously produced September 1, 2015 snapshot and the requested September 1, 2014 snapshot.
The ALJ notes that the “snapshot” included, for each approximately 20,000 employees, data falling into at least 38 categories plus “[a]ny other facts related to [c]ompensation.” Prior to this burdensome request, Google had complied with previous OFCCP requests for “considerable records and information,” including agreeing to an onsite inspection and interviews of more than 20 managers.
On Jun 17, 2016, “Google communicated its refusal to produce” the requested data leading to the issuance of a Notice to Show cause on September 16, 2016. The OFCCP complaint, signed on December 29, 2016, alleges that, as of that date, Google has “persisted in its refusal” to produce the items.
On February 21, 2017, the ALJ granted OFCCP’s request to apply expedited hearing procedures. At issue in the present decision was the OFCCP’s February 7, 2017 motion for summary judgment, which the ALJ denied because the regulations establishing the expedited procedures do not permit such motions.