OFCCP May Blow the Lid on Employers’ Workforce Data
Given the fact many automotive companies and their first and second tier suppliers are federal government contractors, they should be aware of a recent announcement from the Office of Federal Contract Compliance Programs ("OFCCP"). OFCCP is a branch of the US Department of Labor charged with enforcing affirmative action obligations of employers who sell goods or services to the federal government. OFCCP also has jurisdiction over first tier subcontractors of companies who hold government contracts.
On August 19, 2022, OFCCP published a Notice in the Federal Register informing all interested persons that they intend to release to the Center for Investigative Reporting all consolidated employer information reports known as EEO-1s filed by all federal contractors from 2016 to 2020. The Center for Investigative Reporting (“CIR”) is a nonprofit news organization that conducts investigative journalism organization. It publishes the results of its investigations on the Reveal website and other social media platforms.
The EEO-1 Report came into being with the passage of the Civil Rights Act of 1964. The Report is filed annually by federal contractors and subcontractors with 50 or more employees or any employer regardless of their contractor status with 100 or more employees. The EEO-1 consists of a statistical profile of an employer’s workforce by race and sex classified into 10 different Job Categories. Multi-unit employers file reports for each major facility or organizational unit that is then rolled up into a Corporate Consolidated Report. The CIR is seeking the Corporate Consolidated Report for every employer who file such a report between 2016 and 2020. OFCCP estimates the CIR request covers approximately 15,000 unique companies. Whether or not employer EEO-1 Reports filed with the federal government are confidential has been the subject of much debate over the years. Many employers believe that detailed profiles of their workforce by race in sex is confidential information and constitutes a trade secret. If this conclusion were correct, EEO-1s would be exempt from disclosure to third parties under the federal Freedom of Information Act.
The CIR has been attempting to access this data since 2019 when it filed a federal court lawsuit in California against the Department of Labor. In that lawsuit, CIR contended that the diversity statistics of federal government contractors is a matter of significant public concern and there for should be made public under FOIA
Employers have a number of reasons to fear their EEO-1 data becoming public. Among other things, plaintiff lawyers could use these statistics to try to weave a class wide discrimination lawsuit. Public interest groups like CIR could use the data to call out employers who they believe have underperformed in their diversity efforts, or worse yet, engaged in discrimination.
The Federal Register notice published on August 18 gives employers until September 19 to file objections to the release of the statistics. A web form through which contractors may submit written objections, which can be found at https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal. Contractors may also submit written objections via email at [email protected], or by mail to the contact provided in Federal Register notice.
Any objection to the release of your company’s EEO-1 reports must, at a minimum, state
The specific information from the EEO-1 Report the contractor considers to be a trade secret or commercial or financial information.
The facts that support the contractor's belief that this information is commercial or financial in nature.
The steps have been taken by the contractor to protect the confidentiality of the requested data.
How disclosure of this information harm an interest of the contractor such as by causing foreseeable harm to the contractor's economic or business interests.
An employer in the automotive industry who feels their EEO-1 data should not be released to the public would be well advised to take the time to review the Notice in detail and file its objections before September 19, 2022.