Google Decision and Federal Contractors? Obligations to Provide Data to OFCCP

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.