Google Pay Data Shielded From Public in DOL Lawsuit, for Now

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By Joyce E. Cutler

Alphabet Inc.’s Google doesn’t have to unveil its compensation data, at least for now, in response to a lawsuit by the federal government ( OFCCP v. Google, Inc., Dep’t of Labor A.L.J., No. 2017-OFC-0004, hearing 4/7/17 ).

A Department of Labor administrative law judge in San Francisco April 7 granted Google’s request for a preliminary protective order on its salary data. Google like many Silicon Valley companies fiercely guards compensation used to lure and retain employees. The protective order prevents the public release of any pay data during the course of the legal proceedings.

The Labor Department’s Office of Federal Contract Compliance Programs wants to understand Google’s pay decisions to determine if there is any discrimination at the Mountain View, Calif., tech giant.

The federal watchdog agency seeks data on pay, including bonuses and stock options, and salary history. The government also wants employee contact information on 21,154 workers to interview them about pay issues from September 2013 to September 2015.

The tech company won another preliminary ruling in the case last month, when the ALJ said the company didn’t immediately have to provide the OFCCP with pay information dating back to the company’s formation as well as the names and contact information for some 20,000 workers. Instead, the ALJ said it needed to hear arguments from both sides before making a final decision.

Google, under terms of a contract with the federal government, must comply with nondiscrimination requirements and provide data. It’s fighting the requested information as overbroad.

Google already has turned over 1.8 million data points and spent more than $500,000 to comply with OFCCP requests, including having its engineers build a new tool to extract information from its databases, said Lisa Barnett Sween, litigation manager with Jackson Lewis P.C. in San Francisco, representing Google.

“The fact that Google could do that does not mean Google should do that,” but it did, Sween said.

Immediate Ruling Not Expected

Whether Google must provide compensation and contact information for thousands of employees is now up to the administrative law judge.

ALJ Steven Berlin isn’t expected to make an immediate ruling.

No matter the result, the final ruling could likely be appealed to a federal district court.

The Labor Department in January sued to force the tech company to either turn over pay information on workers at its California headquarters or stop doing business with the government. Under that penalty, known as debarment, the tech company would lose its federal contracts for noncompliance.

OFCCP is not seeking debarment, Berlin said at the start of the April 7 hearing. “If I find that OFCCP is entitled to some or all of the materials sought, I‘m just going to order Google to produce those. I’m not going to make a finding of any kind of violations,” Berlin said.

If Anyone Can Provide Data, Google Can

If anybody can provide such data, it’s Google, DOL trial attorney Marc Pilotin said during the hearing.

Google earned $28 billion in 2016 as a data and technology company and would not be unduly burdened in providing the requested data for the OFCCP audit, said Pilotin.

“It would have no meaningful impact” on Google if it had to spend $1 million to comply with the OFCCP request, Michael Brunetti, an analyst with Associated Veterans, which is an OFCCP contractor, testified for the DOL.

Google, however, argued the government’s request poses an undue burden and has Fourth Amendment implications.

Does money actually correlate with burden, Sween, the litigation manager representing Google, asked Brunetti. No, said the analyst.

“Whether a company is a small mom and pop or a large corporation like Google it does not surrender its Fourth Amendment rights” when entering into contracts, Sween said.

Prior Salary Requested

OFCCP doesn’t often ask for prior salary, testified Regional Director Jeannette Whipper. Much research shows that previous pay shouldn’t be considered, particularly for adverse impact on women who are then affected by lower pay the rest of their careers based on those initial pay decisions. Yet Google human resources representatives emphasized prior salary to show due diligence.

Google has discretion in the pay decision process, first with setting the initial salary and in promotions and bonuses. “So if we’re finding a pay disparity, we want to find out if the cause was from starting salary,” Whipper testified.

And that can mean reaching back to when the person was first hired, even if that was in 1998 when the company started.

OFCCP also keeps those salary data confidential, Whipper said. The data are exempt from Freedom of Information Act disclosure.

On cross examination, however, Whipper noted that the “typical review is much smaller than this” one. The breadth of a request can include applicants’ data as well. “It depends on the indicators. If it’s impacting the entire workforce,” then the request could be broader.

Google included its entire, sprawling headquarters under the affirmative action plan for compliance purposes. Contractors can define what units to include in the plan. Who defines the functional unit is the contractor, Whipper said.

To contact the reporter on this story: Joyce E. Cutler in San Francisco at JCutler@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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