Federal Contractors Granted Additional Time to Object To Public Disclosure of Their EEO-1 Reports

Newsletter

Updated as of 9/29/22: The Office of Federal Contract Compliance Programs (OFCCP) announced that it is extending the deadline for federal contractors to submit their written objections to the public disclosure of their EEO-1 Reports to October 19, 2022. The OFCCP stated that it has provided the one month deadline extension "to ensure that Covered Contractors have time to ascertain whether they are covered and submit objections." Further, while the OFCCP had not previously stated whether it would release the EEO-1 reports of employers who did not object, it has now confirmed that if it does not receive a written objection by the deadline, it "will assume that the company has no objection to disclosure and will begin the process of sending the contractor's Type 2 EEO-1 Report data to the FOIA requester (CIR)." Given the certainty that the EEO-1 reports of federal contractors who did not file an objection by the previous deadline of September 19, 2022 will be publicly disclosed, federal contractors who have not yet filed an objection may wish to consider whether to do so by the new October 19, 2022 deadline.

NOTE: Further updates to the original article may be found in italics below.

Federal contractors should beware of a recent announcement from the federal government regarding the potential disclosure of their sensitive employment data. On August 19, 2022, the OFCCP issued a Notice in the Federal Register (Notice) that it has received a request under the Freedom of Information Act (FOIA) from an investigative journalist seeking the production of all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Report), filed by federal contractors for the years 2016 through 2020. OFCCP estimates that the FOIA request will cover approximately 15,000 federal contractors.

The OFCCP has stated that the information requested may be protected from disclosure under FOIA Exemption 4, which protects the disclosure of "trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential." However, because the OFCCP has not yet determined whether the requested information is wholly protected from disclosure under the exemption, it is requiring any contractors who filed Type 2 Consolidated EEO-1 Reports from 2016 to 2020, and who object to the disclosure of this information, to submit a FOIA disclosure objection to OFCCP by October 19, 2022.

Background on the FOIA Request for Federal Contractors' EEO-1 Reports

The FOIA request precipitating the OFCCP's Notice originated in January 2019, when Will Evans from the Center for Investigative Reporting (CIR) submitted a request for “[a] spreadsheet of all consolidated (Type 2) EEO-1 reports for all federal contractors for 2016.” CIR subsequently amended this request multiple times, most recently on June 2, 2022, to include Type 2 EEO-1 reports for all federal contractors, including first-tier subcontractors, from 2016-2020.

The Type 2 EEO-1 Report is one of several different types of reports that multi-establishment employers must file annually, which consists of a consolidated report of demographic data for all employees at its headquarters as well as at all of its establishments, categorized by race/ethnicity, sex, and job category.

How Federal Contractors Can Object to the Disclosure of Their EEO-1 Reports

Covered contractors have until October 19, 2022 to submit to OFCCP a written objection to the disclosure of its Type 2 EEO-1 data. To facilitate this process, OFCCP has created a web form through which contractors may submit written objections, which can be found at the Submitter Notice Response Portal. In order to facilitate processing, OFCCP strongly encourages contractors that wish to submit written objections to utilize this web form. Contractors may also submit written objections via email at OFCCPSubmitterResponse@dol.gov. Regardless of the delivery system used, any objections must include the contractor's name, address, contact information for the contractor (or its representative), and should, at minimum, address the following questions in detail so that OFCCP may evaluate the objection to determine whether the information should be withheld or disclosed pursuant to FOIA Exemption 4:

1. What specific information from the EEO-1 Report does the contractor consider to be a trade secret or commercial or financial information?
2. What facts support the contractor's belief that this information is commercial or financial in nature?
3. Does the contractor customarily keep the requested information private or closely-held? What steps have been taken by the contractor to protect the confidentiality of the requested data, and to whom has it been disclosed?
4. Does the contractor contend that the government provided an express or implied assurance of confidentiality? If no, were there express or implied indications at the time the information was submitted that the government would publicly disclose the information?
5. How would disclosure of this information harm an interest of the contractor protected by Exemption 4 (such as by causing foreseeable harm to the contractor's economic or business interests)?

If a contractor fails to object by October 19, 2022, it will be considered to have no objection to disclosure of the information. For contractors that do submit timely objections, OFCCP will independently evaluate the objection(s) submitted. If OFCCP determines to disclose the information over the objection of the contractor, OFCCP will provide written notice to the contractor of the reasons the disclosure objections were not sustained, a description of the information that will be disclosed, and a specified disclosure date that is a reasonable time subsequent to the notice.

Why a Federal Contractor Might Want to Object

Almost all employers treat information about the employer’s workforce, including that which is included in Type 2 EEO-1 report, as confidential. Not only does this report include its job categories and locations, but also the sex, race, ethnicity and number of employees in its various locations throughout its business. Such information could be used to the advantage of an employer’s competitors as well as a party considering claims against the employer. Federal government contractors may therefore wish to give serious consideration to filing an objection to the disclosures of its Type 2 EEO-1 data in response to the FOIA request. While filing an objection does not guarantee that the OFCCP will grant the objection, not doing so makes it more likely that the employer’s Type 2 EEO-1 Report will end up in the hands of the FOIA requester, and where it goes from there is anyone’s guess.

If you have any questions regarding the potential disclosure of EEO-1 reporting data or would like assistance in filing an objection with the OFCCP, contact your Quarles & Brady attorney or:

• Bob Duffy: (414) 277-5647 / robert.duffy@quarles.com
• Tyler Roth: (414) 277-5765 / tyler.roth@quarles.com