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FOIA request prompts feds to ask: Ought to contractors’ EEO-1 knowledge be made public?

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Federal contractors that may object to the general public launch of Sort 2 Consolidated EEO-1 studies filed between 2016 and 2020 could have 30 days to submit feedback to the Workplace of Federal Contract Compliance Packages, the company mentioned in a discover launched Thursday.

The company mentioned the discover, scheduled to be revealed in The Federal Register on Friday, is in response to a Freedom of Data Act request in search of a spreadsheet of all consolidated Sort 2 EEO-1 studies for all federal contractors, together with “first-tier subcontractors,” from 2016 to 2020.

The Sort 2 report is considered one of a number of EEO-1 studies that organizations could also be required to file yearly with the federal authorities. Particularly, Sort 2 studies are filed by multiestablishment employers, and the studies should embody knowledge for all workers of the group — together with those that work on the group’s headquarters and in any respect different institutions — categorized by race, ethnicity, intercourse and job class.

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OFCCP opened a webpage for contractors to submit written objections and related data. The location features a deadline of 5 p.m. on Sept. 19, 2022, for all feedback.

EEO-1 knowledge sought within the FOIA request “could also be protected against disclosure” below FOIA tips, which exempt “‘commerce secrets and techniques and business or monetary data obtained from an individual [that is] privileged or confidential,’” in accordance with the U.S. Division of Justice. However OFCCP added that it had not but decided whether or not the requested data fell below this exemption.

H. Juanita Beecher, counsel at Fortney & Scott, mentioned in an interview with HR Dive that there’s an “inclination,” based mostly on the discover, that OFCCP might not wish to launch the EEO-1 knowledge in query. “However they will solely try this for contractors that really filed with them inside the [30-day period],” Beecher mentioned. “If federal contractors don’t object, then their knowledge shall be launched by OFCCP.”

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The FOIA request is a part of ongoing litigation between the Heart for Investigative Reporting, the media group that submitted the request, and OFCCP. CIR beforehand sued the U.S. Division of Labor in 2019 after OFCCP knowledgeable CIR that it might withhold knowledge for sure contractors that objected to the discharge of EEO-1 Sort 2 knowledge.

DOL filed a movement for abstract judgment, however a federal decide denied this movement and as an alternative granted abstract judgment in favor of CIR, holding that the federal government was not justified in making use of FOIA’s exemption to EEO-1 studies. The decide additionally ordered DOL to supply the withheld studies with out redaction.

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However employers in search of to stop EEO-1 knowledge from being launched might discover it tough to argue that it ought to fall below FOIA’s exemptions for commerce secrets and techniques, notably if they’ve beforehand revealed EEO-1 data voluntarily, Beecher mentioned. She mentioned that affected contractors ought to learn the discover and decide whether or not they wish to file an objection “as quickly as attainable,” noting that “OFCCP is making this about as simple because it ever has been.”

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