Google Decision and Federal Contractors? Obligations to Provide Data to OFCCP
July 21, 2017
Overview: In a significant ruling addressing what additional information federal contractors must provide following the initial response to an OFCCP desk audit, a U.S. Department of Labor Administrative Law Judge ruled that there are significant limits on what OFCCP can demand. In OFCCP v. Google , the judge rejected most of OFCCP’s expansive multi-year data requests, and ruled instead that personnel data for only a second year, with protections for employees’ privacy, must be provided. The Google decision should be carefully reviewed by all federal contractors facing an OFCCP compliance evaluation to understand the limits on the Agency’s authority to request supplemental data and information. While the decision significantly reduced the data Google has to provide to OFCCP and was highly critical of OFCCP’s audit, the ruling should not be viewed as a complete win for federal contractors.
Background : The U.S .Department of Labor Administrative Law Judge (“ALJ”) Steven B. Berlin issued his delayed decision in OFCCP v. Google addressing OFCCP’s authority to collect additional data and information during a compliance evaluation on July 14, 2017.
OFCCP’s extensive data requests: In response to the initial Scheduling Letter, Google provided OFCCP its “snapshot” of employees as of September 1, 2015, which included all the compensation data required by Item 19. Subsequently, OFCCP requested Google supplement the snapshot with extensive information about the compensation and hiring programs and records and related data, and Google complied. Google also produced employees’ ID, country of citizenship, secondary country of citizenship, visa, and place of birth.
OFCCP then demanded that Google provide additional data for a second year for each employee employed by Google at its headquarters extensive, as well as complete salary history covering multiple years and personal contact information for up to 25,000 employees.
When Google refused to provide the data, OFCCP filed this action alleging the company failed to provide it with access.
The ALJ criticized OFCCP:
The ALJ’s 40-page decision concluded that OFCCP didn’t understand and has “not taken sufficient steps to learn” about Google’s workforce practices, that it was motivated by “an animus that is difficult to understand” and that a key witness from the OFCCP was “evasive” on the witness stand. The ALJ further found the OFCCP’s public attacks on Google’s work practices were based on “little more than speculation;” that it had a reckless disregard for Google employees’ privacy; and that its overbroad data requests comprised a “willy nilly search everywhere and
anywhere.” All of this while noting that OFCCP was auditing a company, Google, who had been “co-operative”.
What data Google must provide: The ALJ significantly limited the breadth of OFCCP’s requests, and ruled that Google must provide OFCCP with the September 1, 2014 snapshot data required by Item 19. In addition, he determined that Google should include in the snapshot, employees’ year of birth as well as all of the additional
data requested, other than data related to starting salary. The ruling also applied a low threshold for OFCCP justifying its expanded requests for contractor data, and did not require OFCCP to disclose its “indicators” or justifications.
Although the ALJ rejected OFCCP’s demand for personal contact information for more than 25,000 employees, he held that Google must provide personal data for 5,000 Google employees despite the ALJ’s stated concerns about OFCCP’s ability to protect information. For these employees selected by OFCCP from the two “snapshots,” Google is to provide the agency with the employees’ name, and the personal address, telephone number, and email address to the extent Google had such information. OFCCP can subsequently request the same personal information for an additional 3,000 employees.
Portions of OFCCP’s requests were denied:
The ALJ rejected OFCCP’s request for
complete salary and job histories of Google employees,
e.g. , for the entire period of employment for each employee, but stated that OFCCP could renew its request for the additional data if the Agency can show that its request is reasonable. The ALJ also
required that OFCCP engage with Google in “meaningful, good faith conciliation to resolve any dispute, including by showing why the information sought is reasonable, relevant, focused, and not unduly burdensome.”
Impact for future OFCCP reviews:
Based on this decision, contractors may have
limited ability to refuse to provide OFCCP with data for a two-year period prior to the desk audit letter that the agency claims is relevant, unless the contractor can show the data is unreasonable, irrelevant, unfocused, or unduly burdensome and that OFCCP is refusing to conciliate on the data requested.
For more information on the impact of this decision contact your Fortney Scott attorney.
Special guest, Victoria Lipnic , former EEOC Commissioner and Acting Chair who now is a Partner at Resolution Economics and leader of the firm’s Human Capital Strategy Group, joins FortneyScott attorneys, David Fortney and H. Juanita Beecher, to discuss the latest EEOC developments. Under the leadership of President Trump’s Acting Chair Andrea Lucas, the EEOC has been busy implementing the Administration’s agenda. This has included President Trump’s Executive Orders announcing forebearance on disparate impact enforcement, focusing on “Illegal DEI,” removing guidance and materials relating to gender identity, and focusing on religious discrimination, anti-Semitism, and anti-Christian bias. We also will discuss the status of the two announced nominations for EEOC commissioners and staffing of critical positions at the agency.
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On May 19, 2025, the Department of Justice (DOJ) announced a new Civil Rights Fraud Initiative, which will utilize the False Claims Act (FCA) to investigate and, as appropriate, pursue claims against any recipient of federal funds that knowingly violates federal civil rights laws. Violations of the FCA can result in treble damages and significant penalties. Deputy US Attorney General Todd Blanche issued a memorandum instructing DOJ attorneys to file FCA claims against recipients of federal money if a recipient knowingly violates civil right laws and falsely certifies compliance with Title IV, Title VI, and Title IX of the Civil Rights Acts of 1964. The memorandum states that the FCA is also implicated whenever federal funding recipients and contractors certify compliance with civil rights laws while knowingly engaging in racist preferences, mandates, policies, programs and activities, including through diversity, equity, and inclusion (DEI) programs that assign benefits or burdens on race, ethnicity, or national origin. The memorandum provided the following example as violating the FCA: Accordingly, a university that accepts federal funds could violate the False Claims Act when it encourages antisemitism, refuses to protect Jewish students, allows men to intrude into women’s bathrooms, or requires women to compete against men in athletic competitions. The Initiative will utilize the FCA to investigate and pursue claims, and will be co-led by the DOJ’s Civil Division’s Fraud Section and the Civil Rights Division. Finally, the DOJ strongly encourages private parties “to protect the public interest by filing lawsuits and litigating claims” under the FCA—reminding the public that successful FCA claims will result in the reporting party receiving a share of the financial damages that are imposed again FCA violators. FortneyScott will continue to monitor these developments. If you have any questions, please reach out to your FortneyScott attorney.
The Equal Employment Opportunity Commission (EEOC) officially opened the 2024 EEO-1 Component 1 data collection portal today, May 20, 2025. All private employers with 100 or more employees and any federal contractors with 50 or more employees are required to file their EEO-1 Reports by June 24, 2025. On the EEOC website employers can find FAQs , instruction booklet , fact sheets , file specifications and more. In her message announcing the opening of the portal, Acting Chair Andrea Lucas reinforced the Trump Administration’s anti-DEI push, stating: I want to take this opportunity to remind you of your obligations under Title VII of the Civil Rights Act of 1964 not to take any employment actions based on, or motivated in whole or in part by, any employee’s race, sex or other protected characteristics. She went on to say that there is no “diversity” exception to Title VII’s requirements and reminded employers that just because employers collect and report race and sex data does not justify using the data to treat employees differently based on protected characteristics. Acting Chair Lucas also noted that President Trump’s Executive Order on disparate impact directed all agencies, including EEOC, to deprioritize “disparate impact” enforcement. If you have any questions, please reach out to your FortneyScott attorney.
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The U.S. Department of Labor (DOL) has launched a new Opinion Letter Program , expanding its compliance assistance for workers, employers, and stakeholders seeking clarity on federal labor laws. This initiative enhances guidance on workplace legal requirements by providing official interpretations from five key enforcement agencies. FortneyScott has extensive experience securing opinion letters, and the Firm has successfully obtained significant DOL opinion letters in the past. What Employers Need to Know Through this program, employers can receive official written interpretations of labor laws as they apply to specific workplace situations. The following agencies will issue tailored guidance: Wage and Hour Division (WHD): Provides opinion letters on wage, hour, and employment law matters. Occupational Safety and Health Administration (OSHA): Issues letters of interpretation on workplace safety regulations. Employee Benefits Security Administration (EBSA): Publishes advisory opinions and information letters on employee benefits compliance. Veterans’ Employment and Training Service (VETS): Releases opinion letters related to veteran employment laws. Mine Safety and Health Administration (MSHA): Offers compliance assistance through the new MSHA Information Hub, featuring regulatory updates and training resources. Why It Matters Opinion letters provide clarity, consistency, and transparency in federal labor law enforcement. Employers can use them as reliable legal guidance to ensure adherence to wage, benefits, and safety requirements, reducing the risk of noncompliance and potential litigation. Deputy Secretary of Labor Keith Sonderling emphasized that “opinion letters are an important tool in ensuring workers and businesses alike have access to clear, practical guidance.” Next Steps for Employers To leverage this resource, employers can: Explore previously issued guidance . Contact your FortneyScott attorney should you need any assistance in submitting a request for an opinion letter or compliance guidance. This program presents a valuable opportunity for businesses to navigate complex employment laws with authoritative insights from federal agencies. Employers should consider requesting opinion letters when facing regulatory uncertainties to strengthen compliance efforts
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On May 19, 2025, the Department of Justice (DOJ) announced a new Civil Rights Fraud Initiative, which will utilize the False Claims Act (FCA) to investigate and, as appropriate, pursue claims against any recipient of federal funds that knowingly violates federal civil rights laws. Violations of the FCA can result in treble damages and significant penalties. Deputy US Attorney General Todd Blanche issued a memorandum instructing DOJ attorneys to file FCA claims against recipients of federal money if a recipient knowingly violates civil right laws and falsely certifies compliance with Title IV, Title VI, and Title IX of the Civil Rights Acts of 1964. The memorandum states that the FCA is also implicated whenever federal funding recipients and contractors certify compliance with civil rights laws while knowingly engaging in racist preferences, mandates, policies, programs and activities, including through diversity, equity, and inclusion (DEI) programs that assign benefits or burdens on race, ethnicity, or national origin. The memorandum provided the following example as violating the FCA: Accordingly, a university that accepts federal funds could violate the False Claims Act when it encourages antisemitism, refuses to protect Jewish students, allows men to intrude into women’s bathrooms, or requires women to compete against men in athletic competitions. The Initiative will utilize the FCA to investigate and pursue claims, and will be co-led by the DOJ’s Civil Division’s Fraud Section and the Civil Rights Division. Finally, the DOJ strongly encourages private parties “to protect the public interest by filing lawsuits and litigating claims” under the FCA—reminding the public that successful FCA claims will result in the reporting party receiving a share of the financial damages that are imposed again FCA violators. FortneyScott will continue to monitor these developments. If you have any questions, please reach out to your FortneyScott attorney.
The Equal Employment Opportunity Commission (EEOC) officially opened the 2024 EEO-1 Component 1 data collection portal today, May 20, 2025. All private employers with 100 or more employees and any federal contractors with 50 or more employees are required to file their EEO-1 Reports by June 24, 2025. On the EEOC website employers can find FAQs , instruction booklet , fact sheets , file specifications and more. In her message announcing the opening of the portal, Acting Chair Andrea Lucas reinforced the Trump Administration’s anti-DEI push, stating: I want to take this opportunity to remind you of your obligations under Title VII of the Civil Rights Act of 1964 not to take any employment actions based on, or motivated in whole or in part by, any employee’s race, sex or other protected characteristics. She went on to say that there is no “diversity” exception to Title VII’s requirements and reminded employers that just because employers collect and report race and sex data does not justify using the data to treat employees differently based on protected characteristics. Acting Chair Lucas also noted that President Trump’s Executive Order on disparate impact directed all agencies, including EEOC, to deprioritize “disparate impact” enforcement. If you have any questions, please reach out to your FortneyScott attorney.
EEOC is expected to open the portal for submission of 2024 EEO-1 Component 1 Report on May 20, 2025. On May 12, 2025, the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) approved the proposed changes to the 2024 EEO-1 Component 1 Report. The EEOC had submitted the revised 2024 EEO-1 Component 1 Data Collection Instruction Booklet and justifications for the changes to OMB on April 15. The primary change for employers is the elimination of the report’s non-binary reporting option in response to President Trump’s Executive Order 14168, Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government . In addition, EEOC will no longer provide the “Notice of Failure to File” letter to employers with incomplete or unfiled EEO-1 Reports and updated the procedures for requesting an undue hardship. According to the EEOC’s 2024 EEO-1 Component 1 Data Collection Instruction Booklet, employers will have a much shorter filing period to file their reports than in previous years as the portal will close on June 24, 2025 . With this significantly shorter filing period (which is nearly a month shorter than last year), employers should begin collecting their data as soon as possible. One additional note, although Executive Order 11246 was rescinded by President Trump on January 21, 2025, the Booklet notes that federal contractors with 50 or more employees will still be required to file EEO-1 Reports on their 2024 data. FortneyScott will provide an update as soon as EEOC officially announces the opening of the portal for submission of 2024 EEO-1 Component 1 Reports. If you have any questions, please reach out to your FortneyScott attorney.
Most of the remaining employees of the Department of Labor’s Office of Federal Contract Compliance Programs received layoff notices this week as the plan to drastically downsize the Office in the wake of Executive Order 14173 proceeds. Affected workers at the OFCCP got a 30-day warning in advance of their June 6th terminations. The agency plans to maintain a presence only in the Southwest region, with a headquarters in Dallas.
President Donald Trump has nominated Brittany Bull Panuccio, an assistant U.S. attorney in Florida, to the U.S. Equal Employment Opportunity Commission. If confirmed, her term would run to July 2029. Panuccio's confirmation would restore the Commission's quorum and create a Republican majority. The reconstituted Commission would be able to issue or withdraw regulations and institute policies in the line with the Trump administrations’ positions. She will join EEOC's Acting Chair, Andrea Lucas, a Trump appointee (renominated), and Commissioner Kalpana Kotagal, who was appointed by President Joe Biden.
Today, the DOL published a Field Assistance Bulletin (FAB) to provide enforcement guidance to the DOL’s Wage and Hour Division (WHD) field staff when determining whether an independent contractor has been misclassified under FLSA. Specifically, the DOL’s Press Release states that the agency is still reviewing the 2024 final rule, Employee or Independent Contractor Classification Under the Fair Labor Standards Act (2024 Rules) and, therefore, WHD investigators are directed not to apply the 2024 Rule when determining employee versus independent contractor status in FLSA investigation. Instead, investigators are told to rely on the prior version of Fact Sheet 13 that was issued in July 2008 which is included in the FAB, and reinstated Opinion Letter FLSA 2019-6 with respect to any matter for which no payment has been made for back wages and/or civil money penalties as of May 1, 2025. It's important to note that the 2024 Rule remains in effect for purposes of private litigation and nothing in this FAB changes the rights of employees or responsibilities of employers under the FLSA. Employers should review the FAB and the additional documentation to understand how the current Administration will enforce independent contractor misclassification. Should you have any questions, please reach out to your FortneyScott attorney.
As employers navigate evolving legal, political, and cultural dynamics in the workplace, certain core obligations remain as critical as ever. This webinar will focus on three areas of the law that deserve renewed attention in 2025 and beyond: Barrier Analysis: With many employers scaling back or eliminating formal DEI initiatives, barrier analysis has become an essential—and legally sound—tool to identify and prevent workplace discrimination. We’ll explore how employers can use barrier analyses to effectively meet compliance goals and mitigate legal risk. Pay Practices: As state-level requirements continue to expand, pay practices remain central to legal compliance. We’ll break down what employers need to do now to stay ahead of audits, meet transparency mandates, and proactively address pay disparities. Accommodations: Religious and disability-related accommodation requests are on the rise. We’ll discuss recent legal developments and best practices for managing accommodation requests consistently and lawfully.
