Attention Entities That Filed Type 2 EEO-1 Reports As Federal Contractors Between 2016 and 2020: OFCCP Extends Deadline (Once Again) to March 3, 2023 for Contractors to Object to Release of Their EEO-1 Type 2 Data

IMPORTANT UPDATE, FEBRUARY 17, 2023

As an update to our previous alerts, OFCCP has (once again) extended the deadline – now until March 3, 2023 – to object to release of EEO-1 Type 2 data.  The new OFCCP Notice states, in relevant part:

“To further ensure the accuracy of our updated List, OFCCP is re-publishing it and providing another opportunity for contractors to review it and notify OFCCP as soon as possible, but no later than March 3, 2023, if they believe their entity has been improperly included on the List. OFCCP has also included the business addresses from contractor EEO-1 reports on this updated List to assist contractors in correctly identifying between entities with similar business names. The updated List is available at the following link: Non-Objector Contractor List. You may also locate it at the top right of this page.

Please note that this List is updated as of February 10, 2023. If you submitted a response or objection for the first time after that date, your entity may not yet have been removed from the List. If your entity is not listed, no action is necessary at this time.

After the close of the response period on March 3, 2023, OFCCP will publish a second updated list by March 10, 2023, which will remove contractors that submitted objections between February 10, 2023, and by March 3, 2023, from the initial disclosure to CIR while OFCCP evaluates these objections. Contractors will then have one final opportunity to contact OFCCP, no later than March 17, 2023, if they believe their company was improperly listed. If you believe your entity was improperly included on the February 16, 2023, List, please send an email to OFCCP-FOIA-EEO1-Questions@dol.gov, including at a minimum the following information: (1) all addresses associated with your entity for the reporting years in which your entity is listed; (2) your entity’s EEO-1 unit number; (3) any other entities associated with your organization (including, e.g., merged companies and subsidiaries) that you intend to cover in your objection, with any additional entity information needed to confirm the objection (including EEO-1 unit number and address, if different from those identified in response to (1) and (2)).

We encourage all recipients of this message to consult the posted updated List. If a contractor wishes to object for the first time to disclosure on any other grounds aside from claiming they are not a federal contractor and were improperly included on the List, the objection must include an explanation as to why the contractor did not object in response to previous notices that OFCCP has issued, and why there is good cause for OFCCP to accept the objection at this point. If OFCCP determines that there is good cause for why the objection was not filed in response to the previous notices provided by the agency, OFCCP may, at its discretion, consider the substance of the late-filed objection.”

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

IMPORTANT UPDATE, FEBRUARY 8, 2023

As an update to our previous alerts, OFCCP has extended its deadline until February 17, 2023 for contractors to assert an objection to the release of their EEO-1 Type 2 data.  The OFCCP Notice states, in relevant part:

“In response to the FOIA request from the Center for Investigative Reporting for Type 2 Consolidated EEO-1 data for all federal contractors during the 2016-2020 EEO-1 reporting years, OFCCP provided federal contractors with multiple notices and opportunities to object to the release of this data. Recently, OFCCP compiled a list of all entities that, according to the agency’s records, were federal contractors that submitted Type 2 EEO-1 data between 2016-2020 and had not submitted an objection to the release of their data. The deadline for contractors on the non-objectors list to respond to OFCCP was February 7, 2023, and this deadline has now been extended to February 17, 2023.

This list is available at the following link: List of Non-Objectors

Please consult the posted list, if you have not already done so, and promptly respond if you believe that your entity is incorrectly included on this list. This is a final notice to all contractors that we are extending the deadline to February 17, 2023, to respond to OFCCP for any of the following reasons:

• Your organization has previously submitted an objection to the disclosure of their EEO-1 data;
• Your organization is on our list of non-objectors and you believe your organization was not a federal contractor during the relevant period; or
• There are entities associated with your organization that should be covered within the objection that you have already filed. This includes merged companies, subsidiaries, and any additional entity information needed to confirm the objection.

If you believe that your entity is incorrectly included on this list, you must respond to our office as soon as possible, but no later than 11:59 p.m. EST on February 17, 2023, via the email address below. Your response must include your organizations’ EEO-1 unit numbers and include information supporting your contention that your entity was not a federal contractor during this period or has previously submitted an objection to release.”

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

IMPORTANT UPDATE, FEBRUARY 3, 2023

As an update to our previous alerts, OFCCP is preparing to release by February 8, 2023 the EEO-1 Type 2 data of contractors that have not submitted an objection. OFCCP provides a list of non-objecting contractors, which is in the link below. The OFCCP Notice states, in relevant part:

“In response to a Freedom of Information Act (FOIA) request from the Center for Investigative Reporting, the Office of Federal Contract Compliance Programs (OFCCP) is preparing to release EEO-1 Type 2 data of contractors that have not submitted an objection for reporting years 2016-2020. This data is subject to release, and OFCCP intends to release the data on or about February 8, 2023. To ensure the accuracy of our list, OFCCP is providing one final opportunity for entities to assert that their data should not be released because (a) they were not a federal contractor during the relevant period; or (b) they believe they previously submitted an objection to the disclosure of their EEO-1 data.

This list is available at the following link: List of Non-Objectors

We encourage all recipients of this message to consult the posted list. If you believe that your entity is incorrectly included on this list, you must respond to our offices as soon as possible, but no later than 11:59 p.m. EST on February 7, 2023, at OFCCP-FOIA-EEO1-Questions@dol.gov. Your response must include information supporting your contention that your entity was not a federal contractor during this period or has previously submitted an objection to the release.”

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

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.