Late last week, the US Office of Federal Contract Compliance Programs ("OFCCP") extended the deadline for federal contractors to object to a request under the Freedom of Information Act ("FOIA") for the total number of their employees by race/ethnicity, gender, and job category to October 19, 2022. Contractors who fail to submit objections by that date will be considered to have no objection to disclosure of the information.1
As background, in January 2019, the Department of Labor's OFCCP received a FOIA request from the Center for Investigative Reporting for all Type 2 Consolidated Employer Information Reports, Standard Form 100 ("EEO-1 Report") filed by federal contractors from 2016-2020.
Companies with 50 or more employees that contract with the federal government must submit annual EEO-1 Reports to the Joint Reporting Committee, which is composed of the Equal Employment Opportunity Commission ("EEOC") and OFCCP.2 EEO-1 Reports require companies to report the total number of employees across all their establishments by race/ethnicity, gender, and job category.
In a notice published in the Federal Register, OFCCP initially established a deadline of September 19, 2022, for federal contractors to submit written objections to disclosure of their EEO-1 Reports in response to this FOIA request.3 Related to the basis of potential objections, this notice advised: "OFCCP has reason to believe that the information requested may be protected from disclosure under FOIA Exemption 4, which protects disclosure of confidential commercial information, but has not yet determined whether the requested information is protected from disclosure under that exemption."
As noted above, on September 16, 2022, OFCCP extended the deadline for objection to October 19, 2022. Also of note, OFCCP stated that it will take the additional step of emailing federal contractors, which it believes are covered by the FOIA request, using the email address provided by contractors that have registered in OFCCP's Contractor Portal and the email address provided as a contact for the EEO-1 Report.
Federal contractors that intend to object to OFCCP's disclosure of their EEO-1 Reports should consult with legal counsel to develop a strategy to protect their confidential commercial information.
Footnotes
1 87 Fed. Reg. 51,147 (Aug. 19, 2022) (citing 29 C.F.R. § 70.26(e)).
3 87 Fed. Reg. 51,145 (Aug. 19, 2022).
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