On January 4, 2017, the Office of Federal Contractor Compliance Programs (OFCCP) sued Google, claiming that the tech giant is illegally withholding information about the compensation it provides its employees.  OFCCP seeks the information as part of an ongoing review of Google’s compliance with the various equal protection laws enforced by the OFCCP.

Google and, indeed, all federal government contractors are required by law to refrain from discrimination in employment on the basis of certain protected characteristics, including race, color, religion, sex, sexual orientation, gender identity, national origin, disability, and status as a protected veteran. In addition, the laws enforced by OFCCP prohibit retaliation against employees for inquiring about, discussing, or disclosing their compensation or that of others.  As part of their contracts with the federal government, contractors agree to allow the OFCCP to inspect their records so that the OFCCP can confirm that the contractor is meeting its non-discrimination obligations.

OFCCP alleges that it began a review of the compliance of Google’s Mountain View campus in September 2015. As part of that review, OFCCP requested from Google various compensation information.  It is clear from the complaint that Google provided certain information in response to OFCCP’s requests.  For example, Google provided a “snapshot” of compensation as of September 1, 2015.  The OFCCP, however, requested additional compensation information, including:

• a compensation snapshot as of September 1, 2014;

• job and salary history for the employees in the 2014 and 2015 snapshots, including starting salary, starting history, starting job code, starting job family, starting job level, starting organization, and changes to the foregoing; and

• the names and contact information for the employees listed in the two snapshots.

Google refused to produce the additional information requested by OFCCP. OFCCP issued a Notice to Show Cause in September 2016 and, when Google continued to refuse to provide the information, filed suit with the Department of Labor’s Administrative Law Judges (ALJs).  OFCCP asks the ALJs to order Google to provide the information OFCCP seeks.  If Google continues to refuse, OFCCP asks that the Department of Labor cancel all its current contracts with the federal government and issue an order barring Google from entering into any future contracts.  To date, Google has filed no response.

“Discovery” lawsuits brought by OFCCP are relatively rare. However, approximately once a year OFCCP files suit against a contractor that refuses to comply with their requests during a compliance audit.  The ALJs have generally upheld the OFCCP’s right to seek information, even if the information is not limited to the time period under audit or seemingly exceeds OFCCP’s authority under the regulations.  Particularly given the specter of debarment, it is critically important that contractors maintain detailed, contemporaneous employment records that can be easily accessed and produced to OFCCP.