DOL drops appeal in ongoing Google pay-data audit

Dive Brief:

The U.S. Department of Labor (DOL) has filed a motion to drop its appeal of a federal administrative law judge's ruling in a dispute with Google over an investigation into the company's pay practices.
In 2014, Google won a bid for a government contract with the General Services Administration, and was subsequently required to submit to an audit. DOL's Office of Federal Contract Compliance Programs (OFCCP) soon began the audit, requesting information and documentation. Google also "produced considerable further information" in response to a request by OFCCP, the administrative law judge said, but did not produce all the information requested by OFCCP. DOL later sued Google for not disclosing certain equal opportunity compensation and data records, but the judge ruled the demand for some salary histories going back to 1998 was "unreasonable" and "overbroad," narrowing the information Google was required to provide.
OFCCP appealed the decision, but the process delayed due to DOL's Administrative Review Board not being fully constituted, according to H. Juanita Beecher, Counsel to Fortney & Scott, who spoke to HR Dive in an interview. Now, OFCCP has dropped the appeal. "OFCCP views this as the most effective means of reaching final resolution with Google," the office's director, Craig Leen, said in a statement to HR Dive.

Dive Insight:

DOL's decision to drop the appeal doesn't mean the audit is finished, said Beecher, explaining that OFCCP has already received thousands of documents from Google. But it may be an example of OFCCP's overall shift toward greater transparency in investigations.

"After careful consideration, OFCCP has decided to enforce the [administrative law judge] order and complete its compliance review on the merits consistent with the terms of its newly issued directives on transparency and Predetermination Notices," Leen said. His statement refers to two directives that altered the way OFCCP approaches auditing of federal contractors, one issued in February 2018, the other in August 2018.

Beecher said these changes, which may represent a shift between the Obama and Trump administrations, mean the current OFCCP is less likely to play "gotcha" with contractors. The new directive on predetermination notices, for example, means the office would effectively share preliminary findings prior to issuing a Notice of Violation. "There were times when the agency, under the prior administration, didn't need to provide contractors notice of what they thought the issues were," Beecher said.

In a previous statement reported by CNet, Google said it "already produced hundreds of thousands of documents to the OFCCP in this matter," adding it believed it had provided sufficient documentation. "There's been no finding of discrimination by the OFCCP to date and we're confident in our own analysis that we don't have a gender pay gap."

The Google audit still could take years, Beecher said, even though Leen has previously stated his intention to reduce the time needed to complete such audits.

The Google saga isn't the only ongoing high-profile pay-data investigation for OFCCP; on Wednesday, Bloomberg Law reported that Oracle — sued by DOL over alleged pay discrimination on the basis of gender and race — has accused DOL of making "secret"agreements with private plaintiffs' attorneys to sue the company for pay discrimination.