Every year, typically in the fall, federal contractors across the nation receive scheduling letters from the Office of Federal Contract Compliance Programs informing them that they have been selected for compliance reviews. The letters request a wide range of information establishing the contractors’ compliance with Executive Order 11246, the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act.

Google’s headquarters received just such a letter on September 30, 2015. Google says that since that time it has provided the OFCCP with “hundreds of thousands of records” showing its compliance with EEO requirements and its affirmative action program. The OFCCP, however, requested more information, including detailed compensation information and names and contact information of Google employees. Google provided job titles and salary histories for the employees as of September 1, 2015, but it refused to provide names and contact information of its employees, or any data for September 1, 2014.

On December 29, 2016, the OFCCP sued Google to get the rest of the information it had requested.

OFCCP, Google sound off

According to Thomas Dowd, acting director of the agency, “Like other federal contractors, Google has a legal obligation to provide relevant information requested in the course of a routine compliance evaluation. Despite many opportunities to provide this information voluntarily, Google has refused to do so. We filed this lawsuit so we can obtain the information we need to complete our evaluation.”

In response, a Google spokesperson has said, “We’re very committed to our affirmative action obligations and to improving the diversity of our workforce and have been very vocal about the importance of these issues. . . . As a federal contractor, we’re familiar with our obligations and have worked collaboratively with the OFCCP. We’ve worked hard to comply with the OFCCP’s current audit and have provided hundreds of thousands of records over the last year, including those related to compensation.” Google says the information it has withheld is confidential or subject to overbroad requests.

The lawsuit

According to the OFCCP Complaint, the General Services Administration awarded Google a contract for “Advertising and Integrated Marketing Solutions,” under which Google has received more than $600,000. The Complaint seeks to (1) “permanently enjoin Google from failing or refusing to comply with the requirements of the laws under the OFCCP’s jurisdiction or their attendant regulations”; (2) direct Google to provide the requested information; and (3) in the event Google fails to provide the information or cooperate in the compliance review, cancel Google’s federal contract and debar it from future federal contracts.

Focus on equal pay

In recent years, the OFCCP has focused more on equal pay as part of its routine compliance review, which has resulted in requests for compensation data. The typical scheduling letter from the OFCCP requests the following information related to salary and compensation:

Employee level compensation data for all employees (including but not limited to full-time, part-time, contract, per diem or day labor, temporary) as of the date on the workforce analysis of your AAP. Provide gender and race/ethnicity information and hire date for each employee as well as job title, EEO-1 Category and job group in a single file. Provide all requested data electronically, if maintained in an electronic format. (NOTE: Presumably Google would have maintained its data electronically!)

a. For all employees, compensation includes base salary and or wage rate, and hours worked in a typical workweek. Other compensation or adjustments to salary such as bonuses, incentives, commissions, merit increases, locality pay or overtime should be identified separately for each employee.

b. You may provide any additional data on factors used to determine employee compensation, such as education, past experience, duty location, performance ratings, department or function, and salary level/band/range/grade.

c. Documentation and policies related to compensation practices of the contractor should also be included in the submission, particularly those that explain the factors and reasoning used to determine has compensation.

Google has stated a desire to find a resolution, but the OFCCP’s filing of this lawsuit indicates that those who wish to play in the government’s sandbox must play by the government’s rules. The question is, will Google want (or need) to play?