As covered in a previous alert, on August 19, 2022, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) notified its federal contractor base that it received a request under the Freedom of Information Act (FOIA) from the Center for Investigative Reporting (CIR) for all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Report), filed by federal contractors and first tier subcontractors from 2016-2020.

Contractors initially had until September 19, 2022, to file individualized objections to the production of their EEO-1 reports. Importantly, the OFCCP has extended the deadline to file an objection to October 19, 2022, to allow contractors sufficient time to ascertain whether they are covered by the FOIA request and submit objections.

The OFCCP also announced that it will be individually notifying contractors that the agency believes are subject to the FOIA request by sending an email to the address provided by contractors that have registered in the OFCCP’s Contractor Portal as well as sending an email to the email addresses provided as a contact address for the EEO-1 report. Although it is unclear when contractors can expect to receive this notification, it is a significant development because it will give greater clarity as to which contractors are covered by the FOIA request – thereby reducing the likelihood that a contractor unnecessarily submits an objection (that may also be subject to a separate FOIA request).

Submitting an Objection

Contractors who wish to object to the disclosure of their EEO-1 reports should consider their grounds for claiming the data can be considered confidential and subject to trade secret protection. We recommend that contractors consult with legal counsel before filing any objection. Contractor objections may be filed through the OFCCP’s “Submitter Notice Response Portal.”

This developing situation may be covered further in future alerts as more information is made available.