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Attention Entities That Filed Type 2 EEO-1 Reports As Federal Contractors Between 2016 and 2020: Objections to OFCCP Disclosure of EEO-1 Data Are Due By September 19, 2022

by Lisa N. Himes and Virginia K. Young

IMPORTANT UPDATE, SEPTEMBER 16, 2022

As a follow-up to our earlier alert below, OFCCP has granted an extension for contractors to submit objections to the release of their EEO-1 data until October 19, 2022

OFCCP explained that it is extending this time to “ensure that covered contractors have time to ascertain whether they are covered and subject objections.”  OFCCP further stated in its notice:  “There are multiple reasons for the extension, including the following. First, since publication of that notice, numerous contractors and contractor representatives have contacted the agency requesting an extension of time to submit objections. Additionally, since the publication of the original notice, some federal contractors have raised questions regarding their efforts to verify whether they are included in the universe of Covered Contractors during the requested timeframe. To address this second issue, OFCCP will also take the additional step of emailing contractors that OFCCP believes are covered by this Freedom of Information Act (FOIA) request, using the email address provided by contractors that have registered in OFCCP’s Contractor Portal and the email addresses provided as a contact for the EEO-1 report.

RJO attorneys are available to assist if you have questions about these objections to the release of your EEO-1 data.


 

The U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP), which administers and enforces contractor nondiscrimination and affirmative action obligations, recently notified federal contractors that they have until September 19, 2022 to file written objections to disclosure of their Type 2 EEO-1 reports.

Background of OFCCP Notice

The OFFCP notified contractors through a Federal Register notice on August 19, 2022, along with contemporaneous posting on its website and notification through the agency’s Contractor Portal and electronic mail listserve. The disclosure at issue is in response to a 2019 Freedom of Information Act (FOIA) request by the Center for Investigative Reporting (CIR), which was amended in June 2022 to request all Type 2 Consolidated EEO-1 report data submitted by federal contractors and first-tier subcontractors from 2016 until 2020.

The Type 2 EEO-1 reports are one of several different types of reports that multi-establishment employers must file annually, and consist of demographic data for all employees at headquarters as well as all locations, including worksite, job categories, race or ethnicity, and sex. The consolidated reports aggregate all subsidiaries and locations in a single report.

The DOL’s regulations require the agency to notify submitters of a FOIA request when the agency has reason to believe that information requested may be protected from disclosure under Exemption 4 (see below), but it has not yet determined whether it is protected under that exemption or any other applicable exemption.  See 29 C.F.R. § 70.26(d)(2). Covered contractors have 30 days from the date of the notice or September 19, 2022, to submit to OFCCP written objections to the disclosure of their Type 2 EEO-1 data. OFCCP has created a website with additional information and through which contractors may submit their written objections and has a FAQ on the topic of FOIA.

Key Recommendations

This planned disclosure could present significant risks, including disclosure of confidential proprietary information as well as individuals’ personal information.

Contractors should consider the following:

  • Submit written objections by September 19, 2022 to ensure that your objections are timely.
  • Request from OFCCP a copy of the information that it is planning to produce. This is particularly important because OFCCP may inadvertently include information outside the scope of the FOIA request. Depending on the timing of OFCCP’s response, contractors may want to request an extension to supplement objections after receipt of the documents.
  • Assert in your objections any applicable FOIA exemptions, such as Exemptions 4 and 6. Exemption 4 protects from disclosure “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” 5 U.S.C. § 552(b)(4). Other exemptions such as Exemption 6 also may be at issue in order to protect personal privacy interests. See 5 U.S.C. § 552(b)(6) (“personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”).
  • Provide detailed explanations in your objections concerning how such information consists of proprietary information that could place the company in a competitive disadvantage. This is important because there is limited precedent on disclosure of these Type 2 Consolidated EEO-1 reports, but one district court previously found that the EEO-1 reports were not commercial and thus they could not be withheld under FOIA Exemption 4. See Center for Investigative Reporting v. U.S. Dep’t of Labor, 424 F. Supp. 3d 771 (N.D. Cal. 2019). As such, contractors should support their objections with specifics regarding how such data falls within the stated exemptions, such as Exemptions 4 and 6.

If you have questions about this upcoming deadline, or your compliance with OFCCP requirements, RJO attorneys are here to assist you.

 

Disclaimer:

The materials provided in this document are offered for informational and educational purposes only and are not offered as and do not constitute legal advice or legal opinions. The transmission or receipt of information through this document, or communications with Rogers Joseph O’Donnell via email does not constitute or create an attorney-client relationship between us and any recipient.

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