In case you have not been following this development, the Office of Federal Contract Compliance (“OFCCP”) intends to release certain EEO-1 data in response to a FOIA request. Specifically, OFCCP intends to release EEO-1 Type 2 Reports submitted by federal contractors from 2016 to 2022. All multi-establishment companies (i.e., any corporation that does business out of multiple physical locations) are required to submit Type 2 Reports. These reports must include data for all employees of the company (i.e., all employees at headquarters as well as at all establishments) categorized by race/ethnicity, sex, and job category.
OFCCP is notifying contractors who have not objected that it intends to release the requested EEO-1 Data after the start of the new year. In e-mails sent to contractors at the end of November 2022, OFCCP stated:
The objection period is now closed, and we are sending this message to confirm we have not received an objection from your organization regarding release of the requested data. Because we have received no objection, 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, 2023.
The e-mail notice instructs companies to contact OFCCP “as soon as possible but no later than January 2, 2023” if OFCCP has erred and the company did timely object to release of its data or the company was not a federal contractor during the applicable time period.
Significantly, OFCCP’s notice appears to throw a lifeline to contractors that failed to submit objections. The notice states:
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.
Companies that did not object to the release of their EEO-1 data but want to object now should contact OFCCP as soon as possible with an explanation for failing to timely object. The OFCCP has not provided guidance regarding the standards it will use to assess contractors’ explanations for failing to timely object.
For contractors opting to address these issues directly with OFCCP, the contact information for OFCCP is:
National FOIA Office
Office of Federal Contract Compliance Programs
U.S. Department of Labor
Helpdesk Number: 1.800.397.6251
Alternatively, attorneys in Blank Rome’s Government Contracts and Labor & Employment practices are available to assist contractors where OFCCP has overlooked timely filed objections to the disclosure of their EEO-1 data and situations where contractors failed to file timely objections.