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By Chris Opfer
Google says the Labor Department hasn’t backed away from aggressive demands for wide-ranging employee pay data as part of a random audit, despite a new president in the White House and a judge’s decision to block some of the requests.
The tech company is embroiled in a dispute with the Labor Department over the agency’s request that Google provide salary histories for some 25,000 workers, dating back to the company’s formation in 1998. The DOL says it has already uncovered “systemic compensation disparities” among male and female workers and wants the data to try to uncover the source of those disparities.
Google late Sept. 22 asked the department’s administrative review board to uphold an administrative law judge’s decision that the data request is too burdensome to justify ( OFCCP v. Google, Inc. , Dep’t of Labor A.R.B., No. 2017-059, response filed 9/22/17 ). The department’s pay disparity claim is “legally questionable and factually unsupported at this point,” Judge Steven Berlin said in July. The company has already turned over “hundreds of thousands” of pay-related documents to the DOL’s Office of Federal Contract Compliance Programs, he noted.
“Unfortunately,” Google’s lawyers told the review board, “OFCCP continues to press its extreme, unsupportable, and now judicially rejected position.”
Google and the Labor Department didn’t immediately respond Sept. 25 to Bloomberg BNA’s request for comment.
DOL officials have said they are concerned that Google may be trapping female workers into a cycle of lower pay rates by using their previous salaries to set compensation levels. The department told the review board in August that “understanding the root of the observed disparities will enable OFCCP to determine if they are unlawful, and if so, propose to Google how to eliminate them.”
Federal contractors and their legal teams are closely watching the case in the hope that it creates some clear limits on the Labor Department’s power to demand documents and data as part of the OFCCP audits. The investigation started while former President Barack Obama was still in the White House but has continued into a Trump administration that some observers expected to bring a shift in enforcement tactics to the Labor Department.
The DOL lawsuit is part of a growing stack of pending litigation surrounding Google’s pay and other employment practices.
Three former Google workers sued the company Sept. 14, alleging that Google pays women less than men for the same jobs. The company is also facing a National Labor Relations Board charge from an unidentified worker who said Google threatens and monitors employees who discuss their pay online.
Google in August fired engineer James Damore after he wrote a manifesto criticizing Google’s culture and pushing stereotypes that Damore said explain differences between male and female workers. Damore is suing the company for alleged wrongful termination.
Google has repeatedly denied any pay disparity among men and women doing the same jobs for the company, saying that it conducts a rigorous annual analysis to ensure pay equity.
Meanwhile, cities including New York, Philadelphia, and San Francisco are moving to ban employers from asking job candidates about their salary histories. Supporters of the legislative push say those inquiries can perpetuate previous pay discrimination.
“This is not about employers having an ill intent or trying to discriminate or trying to perpetuate a wage gap,” Dana Sussman, a deputy commissioner for the New York City Commission on Human Rights, told Bloomberg BNA. The city’s salary history ban is set to take effect at the end of October. “This is simply something we know structurally exists and we are trying to break that cycle by asking a different type of question.”
The Labor Department’s OFCCP audits federal contractors—identified in a “neutral selection process”—to ensure compliance with pay discrimination regulations and other worker protections. Google has worked on a number of government contracts, including with the General Services Administration, the Commerce Department, and the Department of Defense.
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