OFCCP to Disclose Employer EEO-1 Data in Response to FOIA Request

On August 19, 2022, the Office of Federal Contract Compliance Programs (OFCCP) published a Federal Register Notice announcing their intent to provide protected employer information related to EEO-1 reporting, in response to a Freedom of Information Act (FOIA) request. The request will impact approximately 15,000 unique organizations identified as government contractors.

Why This Is Important

The EEOC cannot publicize an employer’s EEO-1 data, by law. However, the OFCCP uses EEO-1 information during compliance evaluations of audits of affirmative action plans. The OFCCP has determined that under portions of a 1974 D.C. Circuit Court decision, it is not subject to the same restriction and can use EEO-1 data to satisfy FOIA requests for information.

When the OFCCP receives a FOIA request, all impacted contractors and first-tier subcontractors are sent a letter notifying them of their rights. With the most recent request, only contractors or their representatives that registered and provided email contact information through the OFCCP Contractor Portal or have subscribed to the OFCCP’s GovDelivery system received the notification. Additional companies may be included in the request, but if not signed up for either method of communication, may not have received the notification.

The current version of the FOIA request covers Consolidated Employer Information Reports filed by federal contractors and first-tier subcontractors who filed Type 2 EEO-1 Reports for the years 2016 through 2020. One of the initial questions, which indicates if an employer is a federal contractor, is often misunderstood by employers who indicate they are federal contractors when they do not meet the criteria. There is concern that data provided by such companies will be submitted under the FOIA request.

Employer Actions

Employers concerned about maintaining the confidentiality of their reported EEO-1 data may want to contact the OFCCP to inquire whether their information is included in the data produced. A copy of the data may be requested if the company’s data was part of the FOIA request.

Employers who wish to prevent disclosure of their EEO-1 report have until September 19, 2022, to file a written objection with the OFCCP. The Federal Register Notice provides specific instructions and a list of questions that should be addressed with the objection, and has also created the Submitter Notice Response Portal to collect relevant information from contractors and their representatives. Employers may also want to consult their employment counsel to develop their response.

Additional information on this topic can be found on the Department of Labor’s Freedom of Information Act (FOIA) Frequently Asked Questions page or the OFCCP’s Contractor Portal.

Members may also contact Hilary Hauser, Sr. Director, HR Services and Executive Director, Chippewa Valley, at 763.253.9186 or [email protected] for general information about the announcement and how it relates to government contractors and subcontractors.