Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Last August OFCCP published a notice in the Federal Register advising employers that in response to a Freedom of Information Act (FOIA) request, the agency was planning to produce confidential information that is ordinarily protected from disclosure pursuant to a statutory exemption. To prevent their confidential EEO-1 data from being disclosed, employers had to file written objections with the agency.
On March 10, OFCCP published a “Second Updated List” of companies that the agency has identified as included within the scope of the FOIA disclosure and which have not objected.
In a March 10 email that was sent to many contractors, OFCCP stated that objections to disclosure would have to be received by March 17, 2023 in order to be considered. Notwithstanding this email, however, some contractors have received written communications through the mail stating that employers have until March 31, 2023 to submit objections. Accordingly, it is not too late to submit objections.
Objections based on an assertion that the employer is not a federal contractor are still timely. Objections on any other grounds must include an explanation as to why the employer did not object in response to previous notices and why there is good cause for OFCCP to accept the objection at this point.
OFCCP previously indicated that it will accept objections based on FOIA Exemption 4, which protects confidential trade secret, commercial, or financial information, but has not discussed other grounds for objection.
The OFCCP has acknowledged stakeholder concerns regarding the production by OFCCP of any Type 2 report that covers fewer than 150 employees, or where small numbers in any one EEO-1 Job Category make it possible to identify the sex, race, or ethnicity, or individual employees. The OFCCP has indicated that contractors may submit objections on this basis and that OFCCP will consider this objection in determining whether the information must be withheld under relevant law. Therefore, any contractors that share this concern but have not yet raised the issue by formally objecting to the proposed disclosure on this basis, should do so now.
Finally, OFCCP’s written notice to contractors reveals the agency’s intention to make the disclosed EEO-1 data publicly available on OFCCP’s website. The agency explains that it is required to do this because it has now received three or more FOIA requests for this data. The broad publication of this data that was collected from employees that were assured that it would be confidential is, of course, a matter of substantial concern.
Objections must be submitted via OFCCP-FOIA-EEO1-Questions@dol.gov by March 31, 2023.