OFCCP: Deadline extended for employers to object to public release of EEO-1 reporting data

09/16/2022

Key to remember: Employers have until October 19 to object in writing to OFCCP requesting that their EEO-1 reporting data from 2016 to 2020 not be publicly released.

Applies to: EEO-1 reporting applies to private sector employers with 100 or more employees, and federal contractors with 50 or more employees meeting certain criteria. The release request applies to federal contractors, although other employers may be impacted inadvertently.

Impact to customers: Customers subject to the EEO-1 reporting requirement must collect race/ethnicity, sex, and job categories data and submit it to the EEOC. There is potential to have this information released publicly per the FOIA.

 

On September 15, the Office of Federal Contract Compliance Programs (OFCCP) announced it is granting an extension for contractors to submit written objections regarding the release of EEO-1 reports requested under the Freedom of Information Act (FOIA).

The original deadline was September 19, 2022. OFCCP is extending this deadline to October 19, 2022.

The reason for the extension is to allow covered contractors more time to figure out whether they are covered by this request and for them to submit written objections.

OFCCP stated they received numerous requests for an extension. OFCCP will email contractors that they believe are covered by this FOIA request using the email address provided by contractors that have registered in OFCCP's Contractor Portal and the email addresses provided as a contact for the EEO-1 report.

Background

On August 19, the Office of Federal Contract Compliance Programs (OFCCP) published in the Federal Register that it received a request under the Freedom of Information Act (FOIA) for EEO-1 Reports filed by federal contractors from 2016-2020. The request was originally submitted in January 2019 but was amended over the past few years.

This means that employee demographic information from thousands of employers would be released under the request.

Employers that filed as federal contractors (or inadvertently did so) any time between 2016 to 2020 that do not want information released were to file written objections to OFCCP originally by September 19, 2022 (new deadline is October 19, 2022).

OFCCP says the FOIA-requested information may not be protected from disclosure. Although there is an exemption under the FOIA that protects confidential commercial information from being disclosed, OFCCP has not determined whether this request applies to the exemption.

Who submits EEO-1 reports?

All private sector employers with 100 or more employees and certain federal contractors are required to annually submit workforce demographics including data by race/ethnicity, sex, and job categories. Employers must count and collect demographic information on all full- and part-time employees during a specified workforce snapshot pay period from October through December.

How does this FOIA request impact private (non-contracted) employers?

Industry leaders say that it's not uncommon for private employers to inadvertently mark that they're a federal contractor (even if they're not) when submitting their EEO-1 data online.

Also, sources indicate that due to the sheer volume of data in this request, it's very likely that OFCCP might accidentally release non-contracted employer data with the federal contractor information.

Thus, all employers are encouraged to submit their written objections by the deadline. Employers may also ask OFCCP to see the data before it gets published.

What should employers do?

Any objections filed must include the employer's name, address, contact information, and should, at a minimum, address the following questions in detail so OFCCP may evaluate the objection to determine whether the information should be withheld or disclosed pursuant to the FOIA exemption:

  1. What specific information from the EEO-1 Report does the employer consider to be a trade secret or commercial or financial information?
  2. What facts support the employer's belief that this information is commercial or financial in nature?
  3. Does the employer customarily keep the requested information private or closely held? What steps have been taken by the employer to protect the confidentiality of the requested data, and to whom has it been disclosed?
  4. Does the employer contend that the government provided an express or implied assurance of confidentiality? If no, were there express or implied indications at the time the information was submitted that the government would publicly disclose the information?
  5. How would disclosure of this information harm an interest of the employer protected by the exemption (such as by causing foreseeable harm to the employer's economic or business interests)?

This article was written by Michelle Higgins, Associate Editor – HR, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.

The J. J. Keller FMLA Manager service is your business resource for tracking employee leave and ensuring compliance with the latest Federal and State FMLA requirements.