A Department of Labor (DOL) administrative law judge (ALJ) has issued his Recommended Decision and Order (RDO) in a closely watched enforcement action brought by the Office of Federal Contract Compliance Programs (OFCCP) against Google Inc., in which the agency accused the company of refusing to provide reams of additional data that OFCCP demanded in conjunction with what began as a routine compliance audit.
The July 14, 2017, RDO by ALJ Steven B. Berlin in OFCCP v. Google, 2017-OFC-00004, concludes that OFCCP’s theory that starting pay negotiations have led to widespread, sex-based pay disparities is “legally questionable,” and, at least at this point in the investigation, amounts to “little more than speculation.” At the same time, the RDO gives OFCCP a partial victory by ordering the company to turn over some (but not all) of the information that the agency seeks.
Significantly, Judge Berlin characterizes many of OFCCP’s requests, which included up to 17 years of salary- and job-history data for some 25,000 employees, as “unfocused, irrelevant, and unduly burdensome.” He further questions whether the agency will ultimately prevail in the case, observing that in investigating apparent gender-based compensation disparities, OFCCP failed to take “sufficient steps to learn how Google’s system works, identify actual policies and practices that might cause the disparity, and then craft focused requests for information that bears on these identified potential causes.”
The ALJ’s decision is now subject to review by the DOL’s Administrative Review Board (ARB), the secretary of labor-appointed tribunal that issues final administrative determinations in DOL enforcement proceedings.
Members of the Center for Workplace Compliance (CWC) can read more here.