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How to respond to a government audit of your employment records

You may have seen the recent headlines about Google – they successful fought a request by the federal government, Office of Federal Contract Compliance Program (“OFCCP”), for the contact information for 25,000 employees!

The OFCCP audits federal government contractors to ensure compliance with federal discrimination laws.  As a federal government contractor, Google spent $500,000 (for a $600,000 government contract) to comply with OFCCP’s information requests, which included salary and demographics information for 21,114 employees.  Google complied but then OFCCP asked for even more information, including the contact information for 25,000 employees.

Google objected to this second request, in part, by arguing that it breached their employees’ privacy.  OFCCP argued that it need to speak with employees in order to determine whether Google was discriminating against women in their compensation process (there has been no determination that Google has discriminated yet).  The judge agreed with both parties to some extent and limited the OFCCP’s request to 8,000 employees.

How does this effect my company? 

You do not have to be a federal contractor in order to be audited by the government.  Many other California and Federal agencies, such as the Equal Employment Opportunity Commission (“EEOC”), National Labor Relations Board (“NLRB”), and California Labor Commissioner, also have broad power to audit and subpoena your employee records.  If you receive any subpoenas or requests for information it is essential to deal with it promptly to protect your business.

Why do I need to protect my employee’s privacy?

The California and federal constitutions protect an employee’s privacy at work, which includes disclosure of contact information.  Although responding to a subpoena is often an exception to privacy laws, it is essential to make sure that your actions are compliant with the law.  While handling an inquiry from a government agency, you do not want to also be subject to privacy claims from your employees.

How can I protect my business?

  1. Implement Relevant Policies. Even though an employee has an expectation of privacy at work, this expectation can be modified through the employer’s policies.  It is important to have policies that balance an employee’s privacy with the business needs of the employer.  For example, employers could implement a policy that allows employers to release employee information.

 

  1. Audit your Employment Practices. If you receive a subpoena, it is often because the agency thinks you are doing something wrong.  At that point, it is often too late to prevent any liability.  You should audit your current employment practices to ensure that you are complying with the relevant law and make any necessary changes.

 

  1. Do not Destroy any Records. Upon receipt of a subpoena, do not destroy any records.  That will make the situation worse.  However, you can limit the records that can be audited by implementing and following a legally compliant Document Retention Policy.

 

  1. Get Advice. When you receive any subpoena, please contact legal counsel for advice about how to proceed.  A subpoena often means that the agency is looking for something.  You should obtain advice about how to navigate the situation to minimize your risk.

Employment Law Attorneys

If your California company receives a request or subpoena from a government agency, it is important to speak with an attorney as soon as possible to protect your rights and your employees’ privacy.  Please contact the knowledgeable attorneys at Garcia & Gurney, ALC. Providing legal services relating to employment law matters to clients in the Bay Area and beyond, our attorneys can guide you every step of the way. Call (925) 468-0400 today to schedule a consultation.

The information contained in this article is provided by Garcia & Gurney, ALC (“G&G”) and is provided for educational and informational purposes only and should not be construed as legal advice or an offer to perform services on any subject matter. Recipients of this article should not act or refrain from acting on the basis of any information included in this article without seeking appropriate legal advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. G&G expressly disclaims all liability with respect to actions taken or not taken by the recipient based on any or all of the information or other contents in this article. This article not intended to constitute an advertisement for professional services or any other services. Nothing herein is intended to create an attorney-client relationship and shall not be construed as legal advice.

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