Technology organisation Google is to supply the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) with a limited set of US employee data to comply with an ongoing audit investigating a potential pay disparity between male and female staff.
The recommendation was made by administrative law judge Steve Berlin on 14 July 2017 after Google objected to providing the full spectrum of information that the OFCCP requested, arguing that it threatened employee privacy and the protection of their personal details.
The OFCCP, which conducts regular audits on government contractors such as Google, began proceedings for the audit in September 2015. This included a snapshot of data for 21,114 employees at Google's head office on 1 September 2015, following the Office of Management and Budget (OMB) approved guidelines. This requested data included employees’ gender, race or ethnicity, hire date, job title, job category and group, base salary or wage rate, hours worked in a typical working week, and any other compensation or adjustments to salary, for example bonuses or overtime. Google provided this information, as well as details on its compensation policies and practices, in November 2015.
In June 2016, the OFCCP requested further data going beyond the approved OMB list. This included details such as the employee's name, birthday, salary history, job history, performance ratings and whether they were hired straight from school or from another employer, among other requirements. Google produced the majority of this data between August 2016 and February 2017. The OFCCP then asked for further snapshot data relating to different categories, such as citizenship information, which was produced by Google in February 2017.
Following this, the OFCCP then requested a snapshot as of September 2014, to compare with the initial September 2015 snapshot, as well as additional job and salary histories and employee contact details, in order to conduct anonymous staff interviews.
The OFCCP stated that it requested this information in order to investigate a potential pay disparity found in the September 2015 snapshot, and it wished to determine whether this disparity was ongoing.
Google contended that this placed too much of an administrative burden on the organisation as a whole, considering the data it had already provided, and also threatened the security of employees’ personal information.
In the order, Judge Berlin recommended a modified list of data categories, to ensure that the OFCCP could still conduct a relevant investigation but also reduce the implications and burden on Google and its employees. He recommended that the September 2014 must be provided, following the same data categories as the 2015 snapshot, as well as the OMB approved information. However he ruled that additional details relating to citizenship, visa status, job history, salary history, age, and locality need not be provided by Google.
The recommendation also limits the number of employee contact details that the OFCCP can access to up to 8,000 employees.
This does not prevent OFCCP from renewing its request for salary and job histories, as well as related data, if it can demonstrate that the request is reasonable, relevant to the investigation, within its authority, and not unduly burdensome.
Judge Berlin said: “My concern centers on to extent to which the employee contact information, once at OFCCP, will be secure from hacking, OFCCP employee misuse, and similar potential intrusions or disclosures. OFCCP has already collected for 21,114 employees information such as name, date of birth, place of birth, citizenship status, visa status, salary, and stock grants. That information, if hacked or misused, could subject tens of thousands of employees to risk of identity theft, other fraud, or the improper public disclosure of private facts. Adding contact data, such as personal phone numbers and email addresses, increases the risk of harm to Google’s employees. The contact information could ease the efforts of malicious hackers or misdirected government employees.”
Berlin also found that, as it stands, there is not sufficient data to support the OFCCP's theory that gender pay disparities result from starting salary negotiations at Google, and that any speculative relevance does not outweigh the burden the data requests place on Google.
Berlin said: "The record shows that OFCCP has not taken 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. Without this, the requests become unreasonable: unfocused, irrelevant, and unduly burdensome."
In April 2017, Google publicly shared its pay methodology in response to the OFCCP's suggestions of a potential pay disparity. A 2016 analysis performed by the organisation in 2016 did not find a gender pay gap.
Eileen Naughton, vice president, people operations at Google, said: “Assuming the recommended decision becomes final, we’ll comply with the remainder of the order, and provide the much more limited data set of information the judge approved, including the contact information for a smaller sample of up to 8,000 employees.
“We invest a lot in our efforts to create a fair and inclusive environment for all our employees, across all genders and races. While we’re pleased with Friday’s recommended decision, we remain committed to treating, and paying, people fairly and without bias with regard to factors like gender or race. We are proud of our practices and leadership in this area, and we look forward to working constructively with OFCCP, as we complete this review and in the future.”
The Department of Labor has been contacted for comment.
