DOL Notifies Government Contractors That It Intends to Disclose EEO-1 Data for Nonobjectors

We recently reported on a Freedom of Information Act (FOIA) request covering government contractors’ 2016–2020 Type 2 EEO-1 reports announced in the Federal Register, pursuant to which contractors had until October 19, 2022, to object to the disclosure of their data. The requesting investigative reporter and nonprofit news organization subsequently sued the U.S. Department of Labor (DOL) under FOIA, alleging that the DOL’s Office of Federal Contract Compliance Programs (OFCCP) violated FOIA in response to the FOIA requests.

OFCCP began contacting companies for which it claims to have no record of objections to the FOIA request, via email on November 22, 2022.

Key Takeaways

• If OFCCP has no record of an objection from a company, it will release the company’s Type 2 data after January 2, 2023.
• OFCCP acknowledges that some companies may have received the message in error, specifically citing two examples: that the company was “not a federal contractor during the relevant period” or that the company in fact timely objected.
• The email provides contact information for a company to respond if it believes the message was in error before January 2, 2023.
• The agency requires any contact to include the company’s “unit number” and “any information supporting [the company’s] belief that your Type 2 EEO-1 data is not subject to release.”
• The email provides an avenue for nonobjecting contractors to submit objections that can show “good cause” as to why the company did not object “during the original 60-day objection period.”
• OFCCP recognizes its company contact information may be incorrect and requests recipients to forward the message to the appropriate contact in the company.

Contractors that timely submitted objections may want to prepare to receive a message from OFCCP advising that the agency has not received objections and consider responding, providing evidence of timely objections and requesting that OFCCP confirm receipt of timely objections. The original portal for submitting objections has closed, but the email seemingly opens a window for nonobjecting contractors, who may want to consider whether to submit objections now, if they have “good cause” for not having timely objected.

Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice Group will continue to monitor developments and will post updates on the firm’s Affirmative Action / OFCCP and Government Contractors blogs as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.