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15,000 Employers Must Decide Whether to Object to FOIA Request

The Office of Federal Contract Compliance Programs (OFCCP) has issued a public notice to employers that the agency has received a Freedom of Information Act (FOIA) request to disclose EEO-1 Reports filed by federal contractors and subcontractors (collectively, “contractors”). Employers have until September 19th to object.

The reports have been requested by Will Evans, a reporter for the Center for Investigative Reporting. Evans is known for investigating and writing articles about working conditions at well-known corporations and prides himself on writing stories that prompt government investigations and reforms.

Evans’ FOIA request is for EEO-1 Type 2 reports, also known as Consolidated Reports. These reports are filed by multi-establishment employers and reflect all employees in the employer’s US workforce. The data table includes EEO-1 job categories on one axis and race, ethnicity, and gender data on the other, with number of employees in each job category/race/ethnicity/gender combination reflected within the table. With this information, customers and competitors, as an example, can view the demographic composition of a workforce, evaluating its diversity by job level.

While employers’ EEO-1 Reports are not subject to FOIA requests through the Equal Employment Opportunity Commission (EEOC), OFCCP and EEOC jointly collect EEO-1 Reports from contractors and OFCCP does not have a similar FOIA exemption. OFCCP estimates that the request covers 15,000 unique employers. Further, the request is for five years of report data covering 2016-2020.

It may be unclear to some employers whether their data is included in the pending disclosure. It is presumed that the impacted employers are those who answered “Yes” to question 3 on the EEO-1 report in any of the five years that are covered by the request. Employers can find this information in the upper right-hand corner of their EEO-1 Reports, under “Section C.”

Does the company or any of its establishments: (a) have 50 or more employees AND; (b) is not exempt as provided by 41 C.F.R. Section 60-1.5; AND either: (1) is a prime government contractor or first-tier subcontractor, and has a contract, subcontract, or purchase order amounting to $50,000 or more; or (2) serves as a depository of Government funds in any amount or is a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Savings Notes?

Employers must now decide whether to object to their information being disclosed. FOIA Exemption 4 protects the disclosure of confidential commercial information. Employers believing their EEO-1 Type 2 report includes confidential commercial information should submit their objection prior to the deadline on September 19, 2022. The Department of Justice (DOJ) has issued guidance for determining if commercial information is confidential under Exemption 4 of FOIA.

In addition to the DOJ guidance, key considerations for employers include:

  1. What repercussions might there be if Evans were to publicly disclose your organization’s EEO-1 Report?
  2. Will failing to object to this FOIA request prevent your organization from objecting to similar FOIA requests in the future from other reporters, employees, or labor organizations?
  3. Does your organization already publicly disclose EEO-1 Reports, such that this disclosure would result in no additional information being released?
  4. How highly does your organization value “transparency” in the event that it may be named as an objector if Evans were to follow-up with a FOIA request for the list of organizations whose EEO-1 Reports were not disclosed due to objections?

For objections to succeed, they must be submitted individually in writing and include company-specific information that will allow OFCCP to determine whether Exemption 4 is applicable. OFCCP has launched an informational website and a web form for submitting objections in an effort to streamline the high volume of responses the agency expects to receive.

In addition to including company contact information, employers wishing to object to the FOIA disclosure will respond to six questions:

  1. Do you consider information from your EEO-1 report to be a trade secret or commercial information? If yes, please explain why.
  2. Do you customarily keep the requested information private or closely-held? If yes, please explain what steps have been taken to protect data contained in your reports, and to whom it has been disclosed.
  3. Do you contend that the government provided an express or implied assurance of confidentiality? If yes, please explain. If no, skip to question 4.
  4. If you answered “no” to question 3, were there expressed or implied indications at the time the information was submitted that the government would publicly disclose the information? If yes, please explain.
  5. Do you believe that disclosure of this information could cause harm to an interest protected by Exemption 4 (such as by causing genuine harm to your economic or business interests)? If yes, please explain.
  6. Are there other legal issues OFCCP should be aware of? If yes, please explain.

Each employer’s objection will be considered by OFCCP in light of the information submitted. HR Works’ EEO specialists anticipate that most contractors filing EEO-1 Reports will decide to object and that many of them will be successful. It remains to be seen how long it will take OFCCP to work through the responses.

Due to the individual nature of each organization’s objection, HR Works clients, including those utilizing HR Works’ EEO-1 filing service, should visit the response portal to submit their own responses. Your HR Works Project Manager is available to assist with any questions you might have.

Many employers in recent years have grappled with deciding whether to publicly release their EEO-1 Reports. The pending FOIA request further highlights the importance of knowing how an employer’s EEO-1 information portrays the organization. For employers wishing to gain insight into their EEO-1 data, HR Works offers an EEO-1 Trend Analysis. The EEO-1 Trend Analysis compares workforce data across years, by geographic region, and to comparable industry data. Contact us if you would like more information.

HR Works, headquartered in upstate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States for over thirty years. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.