OFCCP Extends Deadline and Opens Door for New Objections to Disclosure of EEO-1 Data
In response to pressure from Congress, OFCCP has extended the deadline for contractors to object to disclosure of EEO-1 reports and opened the door for new objections.
On February 14, 2023, the Office of Federal Contract Compliance Programs ("OFCCP") again extended the deadline for contractors to object to disclosure of Type 2 Consolidated Employer Information Reports ("EEO-1 Reports") in connection with a Freedom of Information Act ("FOIA") request. OFCCP's notice also invites contractors who have not already filed objections to do so now.
Employers who have at least 100 employees and federal contractors who have at least 50 employees are required to submit EEO-1 Reports annually to the U.S. Department of Labor. These reports include information about employee job categories, locations, ethnicity, race, and gender. Many companies consider the information contained within these reports sensitive and confidential.
In August 2022, OFCCP published a notice in the Federal Register alerting contractors of its intent to disclose EEO-1 Reports filed between 2016 and 2020 for all federal contractors in response to a FOIA request. OFCCP initially gave contractors until September 19, 2022, to file objections, but then extended the deadline to October 19, 2022. OFCCP did not identify which entities it considered to be "contractors" or what specific data it intended to disclose for those contractors.
In early February 2023, OFCCP published a list of more than 13,000 contractors for which it intended to release EEO-1 Reports. At that time, OFCCP gave contractors a "final opportunity" to object to disclosure, but only if the entity (i) did not qualify as a federal contractor during the relevant time period, or (ii) believed that they previously submitted an objection to the disclosure of their EEO-1 data.
However, on February 10, 2023, the chairwoman of the House Committee on Education and the Workforce sent a letter to OFCCP expressing "serious concerns" that OFCCP failed to provide contractors sufficient information and time to object to the release of their data. In response to the letter, OFCCP again extended the deadline, this time to March 3, 2023. OFCCP also expanded the scope of objections that it will consider. A contractor who did not previously object may now do so by including a statement explaining why the contractor had good cause for not objecting in response to OFCCP's earlier notices.
OFCCP has not ruled on any of the contractors' objections. But for the time being, the agency has removed contractors who objected from its list of "non-objectors," and has stated that it will also remove those who object for the first time by March 3, 2023, so long as the contractor had "good cause" for not objecting before then.
Based upon the revised guidance, any company that files an EEO-1 Report should check OFCCP's current list of "non-objectors" to see whether its information may be subject to disclosure. If so, the company must file any objection to disclosure of its data by March 3 2023.
