February 5, 2023

Volume XIII, Number 36

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February 03, 2023

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February 02, 2023

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DOL Notifies Government Contractors That It Intends to Disclose EEO-1 Data for Nonobjectors

We recently reported on a Freedom of Information Act (FOIA) request covering government contractors’ 2016–2020 Type 2 EEO-1 reports announced in the Federal Register, pursuant to which contractors had until October 19, 2022, to object to the disclosure of their data. The requesting investigative reporter and nonprofit news organization subsequently sued the U.S. Department of Labor (DOL) under FOIA, alleging that the DOL’s Office of Federal Contract Compliance Programs (OFCCP) violated FOIA in response to the FOIA requests.

OFCCP began contacting companies for which it claims to have no record of objections to the FOIA request, via email on November 22, 2022.

Key Takeaways

  • If OFCCP has no record of an objection from a company, it will release the company’s Type 2 data after January 2, 2023.

  • OFCCP acknowledges that some companies may have received the message in error, specifically citing two examples: that the company was “not a federal contractor during the relevant period” or that the company in fact timely objected.

  • The email provides contact information for a company to respond if it believes the message was in error before January 2, 2023.

  • The agency requires any contact to include the company’s “unit number” and “any information supporting [the company’s] belief that your Type 2 EEO-1 data is not subject to release.”

  • The email provides an avenue for nonobjecting contractors to submit objections that can show “good cause” as to why the company did not object “during the original 60-day objection period.”

  • OFCCP recognizes its company contact information may be incorrect and requests recipients to forward the message to the appropriate contact in the company.

Contractors that timely submitted objections may want to prepare to receive a message from OFCCP advising that the agency has not received objections and consider responding, providing evidence of timely objections and requesting that OFCCP confirm receipt of timely objections. The original portal for submitting objections has closed, but the email seemingly opens a window for nonobjecting contractors, who may want to consider whether to submit objections now, if they have “good cause” for not having timely objected.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 333

About this Author

T. Scott Kelly, Defense Contracting Attorney, Shareholder, Ogletree Deakins Law firm

Scott Kelly provides practical solutions for federal contractors and subcontractors across the United States to comply with the ever-changing affirmative action obligations imposed by doing business with the federal government.  He advocates on behalf of his clients in compliance evaluations and administrative enforcement actions triggered by the United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).  Mr. Kelly assists manufacturing, transportation, construction, food processing, hospitality, healthcare, and financial institutions...

Morgan Epperson Labor Attorney

Morgan represents employers in a broad range of labor and employment law matters, defending clients against claims of discrimination, harassment, retaliation, and wage and hour violations.

Before joining Ogletree, Morgan graduated from the University of Alabama School of Law, where she served on the Alabama Law Review, the National Labor and Employment Moot Court Team, the Moot Court Board, and Bench and Bar Legal Honor Society. During law school, Morgan clerked at Ogletree’s Birmingham office and interned at both the United States District Court for the Northern District...