WORKPLACE LAW LOWDOWN | Employers Should Exercise Caution When Producing Employee Information
10/19/17
The Office of Federal Contract Compliance Programs (“OFCCP”) is part of the Department of Labor and is responsible for auditing federal government contractors to ensure that they are compliant with contractual non-discrimination and affirmative action obligations. The OFCCP conducts contractor reviews based on neutral criteria.
Google Inc. was awarded a contract from the General Services Administration in June 2014. In September 2015, the OFCCP selected Google for an audit. The OFCCP initially requested and received 14 categories of information on 21,114 employees employed by Google as of September 15, 2015. But the process halted a year later when the OFCCP requested: (1) a “snapshot” of 19,539 Google employees employed as of September 1, 2014 (one year earlier than the report Google had previously submitted), containing over 50 categories of data on each employee; (2) salary and job histories for each person Google employed on various dates going back to the founding of the corporation in 1998; and (3) the name, address, telephone number, and personal email address of every employee working for the company in 2014 and 2015. When the parties could not agree, the OFCCP asked an administrative law judge (“ALJ”) to enforce its request for information.
The ALJ determined that the OFCCP was not entitled to all of the requested confidential employee information. The OFCCP had not made any determination that Google had engaged in any wrongdoing; rather, the OFCCP was seeking information to explain the wage disparities between male and female employees. The OFCCP ruled that the salary history, job history, and related requests “exceed even the considerable deference owed OFCCP on a determination of relevance,” and the ALJ required the OFCCP to do more to justify the unreasonable burden on Google and its employees.
The ALJ denied the OFCCP’s request for contact information on approximately 25,000 employees, instead reducing the number to 5,000, and only required Google to produce the information that it had in its records. The ALJ noted that disclosure of this information could expose many Google employees to unnecessary risks, and disclosure could also lead to distrust between Google and its employees. The ALJ specifically noted concerns regarding the extent to which the employee contact information, once at OFCCP, would be secure from hacking. The potential for OFCCP employee misuse of the information, as well as similar potential intrusions or disclosures, were also noted. The OFCCP had already collected extensive information for 21,114 employees. That information, if hacked or misused, could subject tens of thousands of employees to the risk of identity theft, fraud, or improper public disclosure of private facts. Adding more contact information would only increase the risk of harm to Google employees, and ease the efforts of malicious hackers or misdirected government employees. The ALJ further noted concerns regarding the effect disclosure of this information would have on the trust between Google and its employees, particularly when Google expends considerable efforts to attract and retain top talent. U.S. Department of Labor v. Google Inc., Case No. 2017-OFC-00004, July 14, 2017.
While the circumstances with Google involved an audit of a federal contractor, the takeaways are relevant for employers in all contexts. Employers should exercise caution when responding to a request for employee information. Government and other subpoenas frequently request “all” information regarding an employee. These requests, like the one at issue here, may be too broad, and the requesting party may not be entitled to all of the requested information. Employers should seek legal advice before producing or providing confidential employee information, particularly because what is considered “confidential” may depend on the circumstances. Without sound advice, employers run the risk of violating state and/or federal law which may subject the employer to fines and/or penalties.