ALJ Narrows OFCCP’s Request for Google Employee and Pay Data

by Seyfarth Shaw LLP

Seyfarth Synopsis: Last Friday, an administrative law judge limited the amount of information that the OFCCP may seek from Google in its on-going compliance audit because the agency failed demonstrate relevance or justify the burden of its latest data requests.  The disputed data requests sought contact information for more than 25,000 employees at Google’s CA headquarters, as well as job and salary information dating back to 1998.  For Federal contractors, the 43-page decision offers a window into the depth and breadth of OFCCP data requests, particularly with regard to pay.

On July 14th,  an Administrative Law Judge (“ALJ”) denied certain data requests by the Office of Federal Contract Compliance Program (“OFCCP”) that sought massive amounts of pay-related data from Google in connection with a routine compliance audit.  In his decision and order, ALJ Steven Berlin took the agency to task over its demands for employee salary and job history dating back more than 20 years “without a minimal showing of relevance.”  He also narrowed the OFCCP’s June 2016 request for contact information for all employees at Google’s Mountain View, CA headquarters—approximately 25,000 people—citing both relevance and concerns about employee privacy.  

The Disputed OFCCP Data Requests

Since the audit began in September 2015, the OFCCP issued extensive data requests seeking detailed information for employees at Google’s headquarters.  After Google responded to the agency’s initial requests with extensive employee data, the agency asked for still more information in June 2016.  Specifically, the OFCCP requested that Google provide:

  • An employee report as of September 1, 2014 (one year earlier than the employee report that Google initially submitted) containing over 50 categories of data on each of the 19,539 people employed at that time such as market salaries for jobs, value of stock options, and educational history;
  • A list of all starting salaries, salary changes, starting jobs and job changes for each person employed on either September 1, 2014 or September 1, 2015;
  • The name, address, telephone number, and personal email of each person employed on either September 1, 2014 or September 1, 2015.

Google refused to comply with the requests on the grounds that they were overly broad and went beyond the scope of what was relevant in the audit.  Google also claimed that the OFCCP’s request for contact information presented unnecessary risks to the privacy interests of its employees.  The OFCCP then initiated a lawsuit to compel Google to disclose the requested information. 

Most of the OFCCP’s Broad Pay Data Requests Not Supported

As made clear by both the OFCCP and the ALJ during the ensuing litigation, the agency’s expansive requests were made in connection with its on-going compliance audit:  There has been no finding that Google engaged in unlawful discrimination or failed to meet its affirmative action obligations.   Rather, OFCCP representatives testified that additional information was needed to further investigate supposed “systemic compensation disparities against women” identified by its preliminary analyses of Google’s data.  Without the disputed information, the OFCCP claimed, it could not investigate if the alleged pay disparities were ongoing, how far back they went, or their potential causes. The OFCCP also argued that it needed salary and job histories going back to 1998 to investigate whether Google’s practice of pegging compensation increases to market percentages caused pay disparities (that may have been created by how an employee’s initial salary was set), to widen over time.[1]

The ALJ found no support for either theory, explaining that “OFCCP’s salary history, job history, and related requests exceed even the considerable deference owed OFCCP on a determination of relevance” and “create an unreasonable burden on Google and its employees.”  In so finding, the ALJ denied the OFCCP’s requests for salary and job history back to 1998.  The ALJ noted that Google did not even become a government contractor until 2007 and held that OFCCP remedial authority did not pre-date contractor status.   

Google Is Required to Produce Limited Employee Contact Information

Despite the decision tipping in Google’s favor in many respects, the ALJ still ordered that Google produce a limited subset of employee data under the original OFCCP data request for employee contact information.  Google contested the OFCCP’s request for contact information for all employees at Google’s headquarters—approximately 25,000.  The OFCCP testified that contact information for all employees was needed so that the agency could interview employees about compensation issues without Google knowing who was being interviewed, and, in turn, avoid any retaliation concerns.  The ALJ agreed with the OFCCP’s theory that asking for contact information for a large number of employees allowed interviewed employees to “hid[e] in plain sight.”  Yet, he found that a smaller list would accomplish the same purpose.  To that end, the decision limits the request for contact information to 5,000 employees.[2]   

What this Decision Means for Federal Contractors

For Federal contractors seeking guidance on just how much data they must share during an OFCCP compliance audit, the decision offers some guidance as to how to respond to the OFCCP’s requests for excessive information and data.  At the very least, this decision should hamper the OFCCP’s interest in engaging in limitless fishing expeditions absent an articulated basis for onerous data requests. 

At the same time, the case illustrates that Federal contractors still bear significant costs when subject to an OFCCP compliance audit, in part due to the agency’s aggressive focus on alleged pay discrimination issues.  During the litigation, Google submitted evidence that it spent more than 2,300 hours and approximately $500,000 responding to the OFCCP’s data requests to date.  This is true even though the requests were made in connection with a routine compliance audit, and were not related to any findings of discriminatory pay practices or any complaint. 

The ALJ decision marks a victory for Google, but not an end to the OFCCP’s investigation.  We will continue to monitor this case and provide updates with any important developments.



[1] The OFCCP argued that it was entitled to investigate continuing violations as far back as the employee’s date of hire because of the rolling amendment to the statute of limitations for ongoing compensation discrimination created by the Fair Pay Act, (The Lily Ledbetter Act) however, ALJ Berlin concluded that the Fair Pay Act does not apply to claims brought under E.O. 11246.

[2] After considering the initial 5,000 employees, the OFCCP may request contact information on up to 3,000 additional employees.


Written by:

Seyfarth Shaw LLP

Seyfarth Shaw LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.