On August 19, 2022, the governmental agency that monitors federal contractors, the Office of Federal Contract Compliance Programs (“OFCCP”), published a notice in the federal registry regarding its plans to respond to a public records request under the Freedom of Information Act. The request seeks the consolidated employment demographic data (“EEO-1 Report”) submitted by all federal contractors between 2016-2020.
Who does the public records request impact?
Employers holding certain federal contracts are required to file an annual EEO-1 Report, which is also provided to the OFCCP. Presumably, this would include any employer who answered “Yes” to Question 3 on their annual EEO-1 Report filing. Question 3 asks:
Does the company or any of its establishments (a) have 50 or more employees AND (b) is not exempt as provided by 41 CFR 60-1.5, AND either (1) is a prime government contractor or first-tier subcontractor, and has a contract, subcontract, or purchase order amounting to $50,000 or more, or (2) serves as a depository of Government funds in any amount or is a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Savings Notes?
This may include employers who do not actually qualify as a covered contractor if they inadvertently answered “Yes” to Question 3.
What information is subject to disclosure?
The OFCCP received a public records request for the consolidated EEO-1 Reports filed by recipients of federal contracts between 2016-2020. These reports include information on the number of employees working for the business, by job category, and with information related to the employees’ sex and race or ethnicity.
Isn’t the information submitted confidential?
The EEOC is prohibited by law from disclosing the EEO-1 reports, except in limited circumstances. However, the EEO-1 Reports filed by recipients of federal contracts are also provided to the OFCCP, who is not subject to the same confidentiality obligations.
Although OFCCP intends to respond to the public records request, there may be exemptions under the public records law that allow OFCCP to withhold specific reports from disclosure. One exemption protects the disclosure of confidential commercial information.
Typically, when the OFCCP receives a public records request it will contact contractors impacted to determine whether an exemption to the request exists. This gives the contractor the opportunity to object to the disclosure and submit a request for exemption. Due to the breadth of the current public records request, OFCCP opted instead to issue a public notice.
What do you do next?
Any business that holds a covered federal contract or is concerned its information may be disclosed as part of the public records request should contact counsel to discuss its options in submitting a request for exemption from the public records request. The OFCCP must receive these requests no later than September 19, 2022.
If you need assistance in evaluating the potential impact of the OFCCP public records request on your business, please contact Gunster’s Labor and Employment Law practice group.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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