According to the Office of Federal Contract Compliance Programs (OFCCP), since 2019, Will Evans, a reporter for the Center for Investigative Reporting, has sought the Employment Information Report (EEO-1) data of federal contractors through a Freedom of Information Act (FOIA) request to OFCCP. Mr. Evans amended his FOIA request on June 2, 2022, and now seeks the Type 2 Consolidated EEO-1 Report demographic data of federal prime contractors and first-tier subcontractors for 2016–2020. OFCCP estimates that this impacts approximately 15,000 contractors and first-tier subcontractors.

What does this mean? Absent an objection, OFCCP could disclose your company’s Type 2 Consolidated EEO-1 Reports Component 1 data for 2016–2020 in response to Mr. Evans’s FOIA request.

What is an EEO-1 Report? The EEO-1 Report is the form used annually by the Equal Employment Opportunity Commission and OFCCP to collect a summary of an employer’s workforce data.

What is Component 1 data? Component 1 data is a demographic summary of an employer’s workforce categorized by race/ethnicity, sex, and job category. The EEOC also collected compensation data, referred to as Component 2 data, for 2017 and 2018, but Component 2 data is beyond the scope of the FOIA request.

Who must file an EEO-1 Report? An EEO-1 Report must be filed annually by employers with 100 or more employees and certain federal contractors with 50 or more employees. Specifically, the OFCCP regulations require the filing of an annual EEO-1 by every prime contractor or subcontractor not otherwise exempt from the regulations, and that:

  • Has 50 or more employees
  • Is a prime contractor or first-tier subcontractor
  • Has a contract, subcontract, or purchase order amounting to $50,000 or more; serves as a depository of government funds in any amount; or is a financial institution that is an issuing and paying agent for US savings bonds and savings notes

What is a Type 2 EEO-1 Report? A Type 2 EEO-1  Report is one of the reports prepared by a multi-establishment employer and is a consolidated report of demographic data for all employees at its headquarters and all establishments.

  • Does this impact your company? Yes, if your company filed a Type 2 EEO-1 Report for one or more years between 2016 and 2020, and one of the following is true:
  • Your company is a federal prime contractor, or
  • Your company is a first-tier subcontractor, or
  • Your company incorrectly indicated on its EEO-1 filing that it is a federal prime contractor or first-tier subcontractor.

My company is impacted. How long does it have to object? OFCCP has given companies until September 19, 2022, to file an objection.

On what basis can my company object? OFCCP has stated in its notice in the Federal Register that it has reason to believe the requested information may be protected from disclosure under FOIA Exemption 4 as confidential commercial information. OFCCP has outlined five questions, that it believes an objecting company should address in detail, at a minimum, to allow OFCCP to evaluate the objection and determine whether the information should be withheld or disclosed pursuant to Exemption 4. In addition to Exemption 4, a company may also wish to explore other grounds for its objection.

If your company wants to prevent its EEO-1 Reports from being disclosed in response to this FOIA request, the company should take steps to file its objection with OFCCP in advance of this fast-approaching deadline. If you need help analyzing whether to file an objection, or you want assistance with filing an objection, you may contact the authors or your relationship partner at McCarter.

Photo of Tiffany Hubbard Tiffany Hubbard

Tiffany Hubbard works with clients to understand their business needs and help them with the evolving landscape of workplace legal requirements and provides programmatic counseling on how best to navigate their federal grants and contracts obligations.

Tiffany has more than 10 years’ experience…

Tiffany Hubbard works with clients to understand their business needs and help them with the evolving landscape of workplace legal requirements and provides programmatic counseling on how best to navigate their federal grants and contracts obligations.

Tiffany has more than 10 years’ experience counseling clients concerning workplace issues and helps clients develop practical and cost-effective solutions. Her counseling experience includes a wide range of issues from workplace safety, wage and hour, leave requirements, fair employment laws, employment agreements, and employment policies. Tiffany conducts internal investigations for clients, including sexual harassment and employee misconduct allegations.

Clients seek Tiffany’s guidance concerning OSHA compliance as well as preparing for and responding to OSHA inspections and citations. Tiffany defends clients against OSHA complaints, and has helped clients obtain favorable resolutions with OSHA. When workplace disputes necessitate litigation, Tiffany defends clients’ interests in single plaintiff and class and collective action employment litigation, arbitration, and administrative agency proceedings. Tiffany also has litigation experience helping clients protect their proprietary information, including seeking injunctive relief against former employees. Tiffany applies this same practical approach to help clients understand their regulatory obligations concerning federal grants and contracts and find solutions that meet their needs, as well as comply with human and animal research subjects regulations.

Her practical experience in this area is born from a prior career where she was responsible for the research compliance program and research subjects protection program for a large community hospital. In that role, she gained invaluable experience as a supervisor in charge of drafting and managing program policies, monitoring federal grant and contract compliance, conducting internal audits, and responding to federal agency and accreditation audits. This experience helps Tiffany provide clients with a unique vantage point for approaching these issues.

Dedicated to giving back, Tiffany has provided many hours of pro bono legal services in the area of labor and employment, helping rape crisis centers respond to subpoenas, as well as assisting a nonprofit with federal grant compliance.

Photo of Alex Major Alex Major

Mr. Major is a partner and co-leader of the firm’s Government Contracts & Export Controls Practice Group. Mr. Major focuses his practice on federal procurement, cybersecurity liability and risk management, and litigation. A prolific author and thought leader in the area of cybersecurity…

Mr. Major is a partner and co-leader of the firm’s Government Contracts & Export Controls Practice Group. Mr. Major focuses his practice on federal procurement, cybersecurity liability and risk management, and litigation. A prolific author and thought leader in the area of cybersecurity, his professional experience involves a wide variety of litigation and counseling matters dealing with procurement laws and federal regulations and standards. His diverse experience includes complex litigation in federal court under the qui tam provisions of the False Claims Act and bid protest actions. He counsels all sizes of companies on issues relating to compliance with government regulations including, among other things, cybersecurity (NIST, FIPS, FedRAMP, and DFARS) requirements, multiple award schedule compliance, Section 508 issues, country of origin requirements under the Buy American and Trade Agreements Acts, cost accounting, and small business requirements. He also regularly conducts internal investigations to assist companies ensure that they are in full compliance with the law.