OFCCP Extends Deadline for EEO-1 Data FOIA Objections

Posted by National Alliance for Fair Contracting on

The National Law Review
Thursday, September 15, 2022

The Office of Federal Contract Compliance Programs (OFCCP) has extended the deadline for federal contractors and first-tier subcontractors to submit objections to a broad Freedom of Information Act (FOIA) request filed by an investigative reporter. The new deadline for filing objections is October 19, 2022.

On August 19, 2022, OFCCP published notice of a FOIA request seeking Type 2 Consolidated EEO-1 Report data filed by federal contractors and first-tier subcontractors for reporting years 2016 through 2020. The original deadline for objections was September 19, 2022. Contractors now have until October 19, 2022, to submit written objections through OFCCP’s Submitter Notice Response Portal, or by mail or email. According to OFCCP, it is extending the deadline “to ensure that Covered Contractors have time to ascertain whether they are covered and submit objections.” OFCCP also announced that it will “take the additional step of emailing contractors that OFCCP believes 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.” If OFCCP does not receive an objection by October 19, 2022, information for contractors covered by the FOIA request will be released.

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Going Public With It – OFCCP Publishes Notice Regarding FOIA Request for All Type 2 Consolidated EEO-1 Reports – and Sets September 19 Deadline to Object

Posted by National Alliance for Fair Contracting on

The National Law Review
Monday, August 29, 2022

On August 19, 2022, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) published a Notice in the Federal Register regarding a Freedom of Information Act (“FOIA”) request from Will Evans, a Senior Reporter and Producer with the Center for Investigative Reporting (“CIR”). The FOIA request seeks the disclosure of certain government contractor compliance reports submitted to the Equal Employment Opportunity Commission. The OFCCP is allowing affected contractors to submit objections to the FOIA request if they fear confidential commercial information may be disclosed and ultimately published.

The Scope of the Request
The FOIA request was initially made in January 2019 but has been amended multiple times and now seeks all Type 2 Consolidated EEO-1 Report demographic data submitted by federal contractors and first-tier subcontractors from 2016-2020. The request does not include EEO-1 requests from single-establishment (Type 1) contractors, other EEO-1 reports filed by Type 2 (multi-establishment) contractors or Component 2 reports with compensation data. Type 2 Consolidated EEO-1 Reports are consolidated reports of demographic data for all employees at headquarters as well as all establishments, categorized by race/ethnicity, sex, and job category. OFCCP estimates that nearly 15,000 companies filed reports subject to the FOIA request. A company can use the EEO-1 Online Filing System’s historic data to determine if they filed EEO-1 Reports between 2016 and 2020.

What If I Don’t Want My EEO-1 Reports Made Public?
FOIA grants the public the right to request access to records from any federal agency. However, there are certain exemptions that allow agencies to redact – or entirely withhold – certain requested information. In its Notice, the OFCCP states it believes that the information requested may be protected from disclosure under FOIA Exemption 4 – which protects disclosure of confidential commercial information.

Accordingly, OFCCP is now requesting that any federal contractor who filed a Type 2 Consolidated EEO-1 Report as a federal contractor between 2016 and 2020 and who wishes to object to the disclosure of the information submit an objection to the OFCCP by September 19, 2022.

How Do I Submit an Objection?
Because of the large number of affected companies, OFCCP has established a portal for contractors to submit written objections. While the OFCCP encourages the use of the portal, objections may also be submitted via email to OFCCPSubmitterResponses@dol.gov, or by mailing to “ATTN: FOIA Officer (FRN), Office of Federal Contract Compliance Programs, Division of Management and Administrative Programs, 200 Constitution Avenue NW, Room C3325, Washington, DC 20210. All objections, however submitted, must be received by OFCCP by September 19, 2022.

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OFCCP Proposes Rule to Collect Summary Compensation Data from Contractors in New Equal Pay Report

Posted by National Alliance for Fair Contracting on

On August 6, 2014, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs issued a Notice of Proposed Rulemaking requiring covered federal contractors and subcontractors with more than 100 employees to submit an annual Equal Pay Report on employee compensation.  The rule will be published shortly in the Federal Register.

The data will enable OFCCP to direct its enforcement resources toward federal contractors whose summary data suggests potential pay violations, while reducing the likelihood of reviewing companies that are less likely to be out of compliance.  OFCCP will also release aggregate summary data on the race and gender pay gap by industry and EEO-1 category to enable contractors to review their pay data using the same metrics as OFCCP and take voluntary compliance measures.  By using existing reporting frameworks contractors already maintain in electronic payroll records, including W-2 earnings, and the longstanding categories and definitions that apply to the EEO-1 Report, the agency is avoiding costly new recordkeeping requirements and minimizing to the extent feasible the compliance burden on federal contractors and subcontractors.

The deadline for submitting comments will be 90 days from the date of publication in the Federal Register.

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