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ALJ to decide when burdensome document production is required

Tuesday, April 4, was Equal Pay Day this year -- the date at which the average American woman finally earns the amount her male peer earned by Dec. 31 of the previous year. This year, Google made a gutsy announcement:

"Let's make every day #EqualPayDay," Google Tweeted, "We're proud to share that we have closed the gender pay gap globally ... according to our annual compensation analysis." They also claim to have ended all racial disparities in pay among Google workers globally.

The announcement was even gutsier considering that Google was involved in a lawsuit with regulators about precisely that subject. In January, the U.S. Department of Labor's Office of Federal Contract Compliance Programs complained to an administrative law judge that Google was refusing to provide the documents necessary for the agency to perform a random audit of Google's compliance with equal pay standards in one of its federal contracts.

Google complained that producing the documents to prove gender pay equality would be burdensome. The company pointed out that it would cost as much as $1 million to produce the records being demanded -- records relating to 54,000 job applicants and 20,000 employees -- for a contract only worth $600,000.

Although courts have long granted significant deference to the OFCCP's audit process, the ALJ in the case agreed with Google -- preliminarily. If made permanent and precedential, the ruling could have a significant impact on how big regulators' demands can be.

"OFCCP is still very much entitled to some information relating to compensation," commented one lawyer who represents government contractors, but "government contractors and their attorneys need to examine the reasonableness and the scope of the request before deciding whether to push back."

DOL fights back with new information

That preliminary ruling was to be considered fully on Friday, and the DOL came back with its own gutsy claim: Google's employment practices include "systemic compensation disparities against women pretty much across the entire workforce."

Google denies it. "Every year, we do a comprehensive and robust analysis of pay across genders and we have found no gender pay gap. Other than making an unfounded statement which we heard for the first time in court, the DOL hasn't provided any data, or shared its methodology," said a spokesperson.

There is no information available about when the ALJ will release the final ruling. If Google won't comply with a legitimate request from the OFCCP, however, it could lose all of its federal contracts.

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