On November 22, 2022, the OFCCP sent emails to federal contractors that their EEO-1 data may be disclosed as part of the agency’s response to the Center for Investigative Reporting (CIR) request for federal contractor 2016-2020 EEO-1 reports under the Freedom of Information Act (FOIA).
The notice from OFCCP confirms that the agency has not received an objection to release of the EEO-1 reports and states that “we are providing your organization with notice that its Type 2 EEO-1 data is subject to release under FOIA, and OFCCP intends to release this data after January 2, 2022.”
Given the language of the email, it seems OFCCP only intended to send the notice to federal contractors that DID NOT submit timely objections to the CIR FOIA request. However, it is our understanding that at least some federal contractors that DID submit timely objections also received the notice.
Contractors who believe they received the notice in error are advised to contact the Department of Labor’s National FOIA Office no later than January 2, 2023, via phone at 1-800-397-6251 or email, OFCCP-FOIA-EEO1-Questions@dol.gov. They should provide their EEO-1 Company and Unit Numbers, and “any information supporting your belief that your Type 2 EEO-1 data is not subject to release.”
The notice also allows for late objections: “If you object to release for any other reason, you may provide the basis for your objection, as well as any explanation as to why an objection was not submitted within the 60-day timeframe that ended on October 19, 2022, that OFCCP provided. If OFCCP determines that there is good cause for why your organization’s objection was not filed during the original 60-day objection period, OFCCP may, at its discretion, consider the substance of the late-filed objection.”
The ongoing dispute between the Center for Investigative Reporting (CIR) and OFCCP over the release of federal contractor EEO-1 reports continues. As you may recall, CIR submitted a Freedom of Information Act (FOIA) request to OFCCP for this information in 2019. Since then, OFCCP has allowed federal contractors the opportunity to file objections to the release of their EEO-1 reports, with the deadline for filing objections being extended several times. All objections were due to OFCCP by October 19, 2022.
On November 15, 2022, CIR filed a lawsuit against OFCCP in the Northern District of California, arguing that the agency violated FOIA by not responding to its FOIA request within 20 business days. CIR is requesting that the Court order the release of the EEO-1 reports. In support of its lawsuit, CIR claims that disclosure of “[t]his data is instrumental to ensuring that federal contractors, obtaining taxpayer dollars, diversify their workforces in compliance with the federal law.” CIR’s lawsuit also notes that OFCCP plans to release to CIR the identify of federal contractors that objected to release of their EEO-1 reports, along with the EEO-1 reports of those contractors that did not object.
OFCCP has not yet responded to the lawsuit, so stay tuned for what may happen next. Employers are not required to respond to the lawsuit unless they want to intervene as a party.
The OFCCP received a FOIA (Freedom of Information Act) request for the disclosure of the Type 2/Consolidated EEO-1 Reports for federal contractors and first tier subcontractors from 2016 – 2020.
This request was originally initiated in January 2019 requesting the reports for the year 2016. This request has been amended several times, most recently in June 2022, to request these reports from 2016 – 2020. The Type 2 Consolidated Report is typically filed by contractors with multiple establishments and would include certain demographic data for the contractor’s employees. This request does not include the EEO-1 Component 2 reports that contain compensation information.
The OFCCP published notice in the Federal Notice Register that they are accepting objections to this request to be considered as an exemption under FOIA related to trade secrets and commercial/financial information. The OFCCP has granted a period of 30 days for contactors to provide a written objection through the newly-created OFCCP Submitter Notice Response Portal. The portal opened on August 19th and closes on September 19, 2022. All objections must be received by the OFCCP via the portal by no later than September 19, 2022.
Should your company choose to submit a written objection or have additional questions about the process or portal, please refer to the Submitter Notice Response Portal FAQs provided by the OFCCP. This includes a list of questions the OFCCP suggests you include along with more information about the FOIA request and process.
Berkshire understands you may have questions regarding if and how you should submit an objection. We recommend that you discuss with legal counsel whether to submit an objection and what the objection will state.
For companies wishing to view their past EEO-1 reports, historical EEO-1 reports may be downloaded by logging into the EEO-1 website at https://eeocdata.org/eeo1. The site requires the email address of the most recent contact person and the password used to file the 2021 EEO-1 reports. A password reset may be required, and the filer will be guided through that process. Once logged into the EEO-1 account for your company, follow the links to navigate to the Historical reports and download the Type 2 reports for each year desired.