To respond to a Freedom of Information Act lawsuit, the Office of Federal Contract Compliance Programs is giving federal contractors until September 19 to object to the release of their EEO-1 reports.

The Office of Federal Contract Compliance Programs (OFCCP) is offering all federal government contractors 30 days from August 19, 2022 (deadline September 19, 2022) to file written objections to the OFCCP’s anticipated disclosure of the 2016-2020 EEO-1, Type 2 Consolidated Reports. The Type 2 Reports include data for all employees of the company (i.e., all employees at headquarters as well as all establishments) categorized by race/ethnicity, sex, and job category. The OFCCP states that any disclosure will not include the Component 2 pay data that was required on the 2017 and 2018 reports.

Prime government contractors and first-tier contractors with 50 or more employees and a contract of $50,000 or more with the federal government are required to file EEO-1 reports with the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC then has an agreement with the OFCCP to share EEO-1 reports from all companies that self-reported they were covered federal contractors (which does not include, for example, contractors who exclusively preform federally assisted work, i.e., transportation construction contractors who only work for state DOTs).

In light of this development and the short window to respond, AGC of America will host an informal conversation with Alissa Horvitz of the law firm Roffman Horvitz on Tuesday, August 30, 2022, from 3:00–3:30 p.m. EASTERN Daylight Time. All interested AGC members and chapter staff are invited. The meeting is not open to nonmembers. The conversation will cover the background of the disclosure order, what data is included, contractors covered, liability concerns and next steps for contractors amongst other matters. We will also host a brief Q&A session at the end if there are further questions. Click here for more info.

In 2019, the Office of Federal Contract Compliance Programs (OFCCP) received a Freedom of Information Act (FOIA) request from Will Evans of the Center for Investigative Reporting for Type 2 Consolidated EEO-1 Report data submitted by federal contractors and first-tier subcontractors. In June 2022, the FOIA request was amended to include all such data submitted by contractors and first-tier subcontractors from reporting years 2016 until 2020.

Contractor’s objections to this release should respond to the following five questions:

1. What specific information from the EEO-1 report does the contractor consider to be a trade secret or commercial information?
2. What facts support the contractor’s belief that this information is commercial or financial in nature?
3. Does the contractor customarily keep the requested information private or closely-held?  What steps have been taken by the contractor to protect the confidentiality of the requested data, and to whom has it been disclosed?
4. Does the contractor 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 contractor protected by Exemption 4 (such as by causing foreseeable harm to the contractor’s economic or business interests)?

OFCCP is providing notice to contractors covered by this FOIA request through a published Notice in the Federal Register, an e-mail to all federal contractors for whom OFCCP has contact information, and the Submitter Notice Response Portal. They have also provided a set of Submitter Notice Response Portal frequently asked questions (FAQs). 

For more information, contact Claiborne Guy at [email protected] or 703-837-5382.

Editor’s Note:  This article was co-authored by Alisa Horvitz of the law firm Roffman Horvitz. Ms. Horvitz focuses her practice on representing clients in various matters before the OFCCP, preparing for and defending OFCCP audits and onsite visits, responding to OFCCP information requests, and conducting live and in-person training seminars on OFCCP compliance. The article should not be relied on as legal advice.