Even without compensation data, federal contractors’ EEO-1 reports will remain targets for Freedom of Information Act (FOIA) requests because the reports may contain vital information about a company.
On Aug. 29, the White House’s Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) announced that it had put on hold the Equal Employment Opportunity Commission’s compensation reporting requirement to the commission’s annual employer information report, known as the EEO-1 report.
Government contractors with 50 employees and contracts awarding $50,000 or more are required to file with the EEOC an annual EEO-1 report, which provides a workforce breakdown by job category and by race, ethnicity and sex. Some job categories for which data must be presented in the report include professionals, technicians, laborers, operatives and sales.
Despite OIRA’s staying the pay reporting requirements, federal contractors audited for workplace affirmative action and nondiscrimination compliance by the Labor Department’s Office of Federal Contract Compliance Programs are required to submit three years of their EEO-1 reports to the OFCCP. Those reports are subjected to FOIA requests filed by third parties, including current and former employees, industry competitors, and plaintiffs’ bar.
Subject to certain exceptions, “the EEO-1 reports are protected from disclosure by EEOC employees” under Title VII of the Civil Rights Act of 1964, Michael Childers, an attorney at Seyfarth Shaw LLP’s Chicago office, said at a session at the National Industry Liaison Group's August annual conference in San Antonio.
“There are also criminal and civil penalties imposed on EEOC employees if they improperly disclose information prior to an investigation being initiated.” The disclosure prohibition and penalties don’t apply to the OFCCP and its employees, he added.
“The OFCCP receives quite a few FOIA requests,” Childers said. “The agency will notify you about the FOIA request, so you can decide whether to engage in the objection process,” he added. “You do not have to object to a FOIA request for your EEO-1 reports. There have been several companies that have made their EEO-1 reports public on their websites. This is something, as an organization, you should make a decision about.”
There are legitimate reasons that a contractor might want to object to the disclosure of its EEO-1 report under FOIA. “Once it’s out there, you are not getting it back,” which means it can be written about incorrectly and the data may be misunderstood by some people, Childers said.
Childers explained that the EEO-1 report is subject to FOIA requests. When the OFCCP receives a FOIA request they will “identify the company official that you have listed on your EEO-1 reports and contact that individual about the FOIA request. Hopefully, the notification ends up at the right location and to the right person.” He advised employers to ensure that the company official listed on the EEO-1 report is aware that such notification may be sent.
“If a request is received, promptly notify your legal department or your outside counsel for labor and employment matters,” he added. “You are on a stopwatch once the agency has notified you that it has received a FOIA request for your EEO-1 reports. You have to respond within ten days,” he said.
Contractors that decide to inform the agency of their objections to the release of their EEO-1 reports “have in their tool box FOIA exemption 4, which protects confidential business information, such as trade secrets, commercial and financial information,” Childers said. The OFCCP will evaluate the contractor’s objections and will decide whether to withhold or release the report.
According to Childers, FOIA objections submitted to the OFCCP should explain how the disclosure of the information will harm the organization. For example, the employer should cite how the report would provide competitors with information about important aspects of the company’s operations and development of its workforce.
If a company chooses to object, it should also note that the reports will show how the company’s workforce has changed in specific job categories, including the sites and positions where there has been growth or contraction, he said. “Growth or reduction in certain positions could allow competitors to gauge success of the company’s business and product development.”
“In the objections, talk about your recruitment and job sourcing,” he said. The company should point out that by studying and comparing the reports for each year, competitors could identify and track other workforce fluctuations, including recruiting patterns, and rates of attrition. Lastly, the company should tell the OFCCP that it assures its employees that the information they voluntarily provide for the report will be kept confidential, he said.
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