To print this article, all you need is to be registered or login on Mondaq.com.
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
POPULAR ARTICLES ON: Government, Public Sector from United States
