Two more strikes and your EEO-1 Type 2 data may be out!
Last chance for Federal Contractors to object to the release of their EEO-1 Reports by OFCCP in response to the Center of Investigative Reporting’s FOIA request.
The Office of Federal Contract Compliance Program (“OFCCP”) is giving federal contractors two last chances to respond to its August 19, 2022 Federal Register Notice calling for objections to the disclosure of contractor’s EEO-1 Type 2 Data. We first reported on the initial notice in September 2022,when the OFCCP initially published its Notice of that it had received a Freedom of Information Act (“FOIA”) request from the Center for Investigative Reporting (“CIR”) for all Type 2 Consolidated Employer Information Reports (EEO-1 Reports) in OFCCP’s possession. Generally, the Equal Employment Opportunity Commission requires all companies with over 100 employees to report demographic data of its workforce. Federal contractors and first-tier subcontractors with 50 employees are also required to report this demographic data to the OFCCP. While the OFCCP believes that this data may be protected from disclosure under FOIA Exemption 4, it must support its determination with written objections from affected companies.
The OFCCP received a FOIA request from the CIR for all EEO-1 Reports submitted between 2016-2020. The EEO-1 Report is one of several Type 2 Consolidated Employer Information Reports and consists of a company’s demographic data of its employees, categorized by race/ethnicity, sex, and job category. The OFCCP requested that all affected federal contractors submit objections to the disclosure of their EEO-1 reports, under the proposition that the requested information may be protected from disclosure under FOIA Exemption 4, which protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” See 5 U.S.C. § 552(b)(4)(2000).
Contractors initially had until September 19, 2022 to file objections. The OFCCP extended the deadline to October 19, 2022. On February 2, 2023, the OFCCP posted a “List of Non-Objectors” (“List”). This List included the names of all the entities that had submitted an EEO-1 Report between 2016-2020 and had not submitted an objection to the release of the report. The OFCCP then requested any contractors who believed they were on the list in error to submit a response. On February 10, 2023, the OFCCP republished an updated list, removing the contractors who were included in error or had raised an objection for the first time to the disclosure of their data.
The OFCCP is providing contractors two more opportunities to respond
By March 3, 2023, contractors must review the updated list to determine if their entity is included. If contractors wish to object for the first time, they may do so with an “explanation as to why the contractor did not object in response to previous notices that the OFCCP has issued, and why there is good cause for the OFCCP to accept the objection at this point.” If the OFCCP determines there is good cause, then the OFCCP may consider the substance of the untimely objection. By March 17, 2023, contractors must review the newly updated list (the OFCCP will republish an updated list on March 10, 2023 removing contractors who submitted objections between February 10, 2023 and March 3, 2023) to ensure that their company is not improperly listed.
All federal government contractors should review the OFCCP’s latest list to ensure that their company is not improperly listed. If your company is listed, we strongly urge you to submit an objection by Friday, March 3, 2023. This time around the OFCCP wants an explanation as to why contractors did not object beforehand and why there is good cause for the OFCCP to accept the objection now. More than likely, this will be contractors’ last opportunity to object. Please see our last blog post about the EEO-1 Reports to learn why contractors should object to the release of their EEO-1 Reports. Then, between March 10, 2023 and March 17, 2023, contractors should review the updated list to ensure that their company is not listed. This will be the very last opportunity to ensure that your objections have been properly received by the OFCCP.
If you have any questions or need assistance with filing an objection, please do not hesitate to contact us.