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Google’s bid to dismiss OFCCP action on access to compensation records fails

By Cynthia L. Hackerott, J.D.

A DOL administrative law judge has denied Google Inc.’s motion to dismiss an OFCCP administrative action in which the agency asserts the company unlawfully denied it access to requested compensation records. Google’s motion was based on in its claim that statements made to the press by an OFCCP Regional Solicitor indicated that the agency had already completed its investigation. However, the ALJ found those statements, although ill-advised, did not carry as much weight as hearing testimony in the matter by an OFCCP Regional Director (OFCCP v. Google Inc., May 2, 2017, Berlin, S.B.).

In its administrative complaint, the OFCCP asserted that Google violated the laws enforced by the agency when it refused to provide requested information as part of a routine compliance evaluation of the multinational company’s Mountain View, California headquarters. On February 21, 2017, the ALJ granted the OFCCP’s request to apply expedited hearing procedures pursuant to the agency’s regulations. On March 15, the ALJ denied the OFCCP’s motion for summary judgment because the regulations providing for expedited procedures do not permit such motions. Further, the ALJ stated that, even he were to reach the merits, he would deny the motion, finding that much of the OFCCP’s data demands were unduly burdensome.

Guardian article. The expedited hearing in the matter began on April 7. That same day, the Guardian published an article which included comments from OFCCP Regional Solicitor Janet Herold, a statement from Google, and excerpts from the hearing testimony of Janette Wipper, OFCCP’s Pacific Regional Director.

The article quoted Wipper as testifying that the OFCCP “found systemic compensation disparities against women pretty much across the entire [Google headquarters] workforce” and that the agency wants to “understand what’s causing the disparity.” The article paraphrased Wipper as saying that the DOL found pay disparities in a 2015 snapshot of salaries and said officials needed earlier compensation data to evaluate the root of the problem.

The Guardian quoted Herold as stating: “The investigation is not complete, but at this point the department has received compelling evidence of very significant discrimination against women in the most common positions at Google headquarters.”

“The government’s analysis at this point indicates that discrimination against women in Google is quite extreme, even in this industry,” the article further quoted Herold. It added that she said the DOL is seeking “additional information to ensure the accuracy of the department’s findings, because if the findings are confirmed, this is a troubling situation.” Herold did not dispute the accuracy of these quotes.

Motion to dismiss. Google moved to dismiss arguing that Herold’s statements demonstrated that the OFCCP had reached a determination that Google is in violation. It asserted that the OFCCP was demanding extensive additional information not to complete an investigation that in fact it has already completed, but rather to improperly enhance, by using the broad investigative authority it is accorded in compliance reviews, its preparation for upcoming litigation on the merits, where formal discovery procedures are more constrained.

Investigation not concluded. The ALJ found that the OFCCP has not concluded its compliance review and, thus, the company’s motion lacked foundation. He noted that the Guardian only published narrowly limited selections of Wipper’s several hours of testimony, and pointed out that Wipper’s non-reported testimony also clarified that the OFCCP was still in the process of investigating the cause of the alleged pay disparities. Because the OFCCP’s legal theory here is not intentional discrimination but rather, apparently, adverse impact, in order to be complete, the investigation must not only determine the existence of a pay disparity linked to sex, it must also determine what caused (or is causing) the disparity and whether that factor is job-related and consistent with business necessity.

“OFCCP began with a search for disparity in 2015,” the ALJ explained. “Having found disparity at that time, it requested similar information for 2014. Both OFCCP’s search for the cause of disparity and OFCCP’s expansion of the database to include an earlier point in time are consistent with an ongoing investigation. Neither suggests a sham or stratagem.”

Agency wants it both ways. However, the judge observed that Herold’s statements to the Guardian complicated the issue because they went beyond Wipper’s testimony by implying that the OFCCP’s investigation is, or should be, complete. “From these statements, it may be inferred that the government wants it both ways,” the ALJ wrote. “[T]he investigation is still ongoing with no final conclusions reached and no discovery rules to limit further demands for information, and yet the Department can announce findings of discrimination to the press.”

Turning to the issue of whether the agency has in fact completed its investigation, the ALJ found Herold’s statements to the press to be inconsistent with Wipper’s testimony. To resolve this inconsistency, he found Wipper’s testimony to have substantially more weight because it was extensive, detailed, and given under oath for nearly half of the reported hearing. Moreover, she submitted to cross-examination by skilled and experienced counsel. She has been directly involved with the case in her capacity as OFCCP Regional Director and consistently stated that the OFCCP needed more information because the substantial evidence of wage disparity by sex on a particular date was just an initial step that required further investigation.

In contrast, Herold’s interviews on that day with multiple reporters, including the Guardian reporter, were not in a formal setting, not under oath, not subject to procedural rules, not subject to cross-examination, and not detailed. They were not given in a setting in which witnesses are made aware that they have a serious legal responsibility to be accurate, precise, and complete. Herold was the designated press contact, but it was not even certain how familiar she was with the specifics of the case, the judge observed.