OFCCP issued yet another notice today regarding its handling of a FOIA request for production of all federal contractors’ EEO-1 Type 2 data from 2016 through 2020.

The request keeps in place a February 17, 2023, deadline for submitting objections, but expands the grounds upon which employers may object, but only if the contractor includes an explanation as to why it did not object “in response to previous notices that we have issued, and why there is good cause for us to accept the objection at this point.”

Meanwhile, on February 10, 2023, Education and the Workforce Committee Chair Virginia Foxx (R-NC) sent a letter to OFCCP Director Yang criticizing the agency’s imminent release of job creators’ sensitive employee data. 

In the letter, Chair Foxx writes:

I have serious concerns that the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has not provided federal contractors, especially smaller employers, with sufficient information and time to object to having their confidential data released pursuant to a Freedom of Information Act (FOIA) request from the Center for Investigative Reporting, a left-of-center journalism organization…. [T]hese reports can reveal the private information of individual employees, especially for smaller employers.

Foxx concludes:

It further appears that many employers were not aware of the pending FOIA request at OFCCP. The agency must do a much better job of informing federal contractors, especially smaller employers, about their rights and obligations. I am also aware that OFCCP has not provided information to all relevant employers about what data will be disclosed in response to the FOIA request. These employers could not determine whether to submit objections because they did not know what information OFCCP would turn over. … For these reasons, I request that OFCCP re-open the period for employers to submit objections to the Type 2 EEO-1 data being released for 60 days.

In its own statement today, OFCCP noted that “[t]his FOIA request spans five years and is unprecedented in scope for OFCCP.” The agency further states that it is performing additional quality assurance checks “to confirm those contractors that have not objected and for which EEO-1 data is subject to disclosure in response to this FOIA request.”

A concern with OFCCP’s approach is that it has not provided an orderly process in which employers can assess whether their information would be included in the proposed disclosure so they could properly file objections to protect their employees’ confidential information.

It is hoped the OFCCP will re-open the period for employers to submit objections to the Type 2 EEO-1 data being released for 60 days without requiring any showing of good cause. 

In the meantime, however, employers should assume that the February 17 deadline will remain in place.  Employers wishing to file objections for any reason, should do so now.   

Littler WPI and the firm’s OFCCP practice group will to continue to engage with appropriate parties concerning this important issue.