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On February 14, 2023, OFCCP introduced that it was once more extending the deadline for employers to file objections to the disclosure of their EEO-1 information in response to a FOIA request from the Heart for Investigative Reporting. The deadline for submitting objections is now March 3, 2023.
As previously discussed, final August OFCCP revealed a discover within the Federal Register advising employers that in response to the FOIA request, the company is planning to provide confidential info that’s ordinarily protected against disclosure pursuant to a statutory exemption. To stop their confidential EEO-1 information from being disclosed, employers should file written objections with the company.
Though employers could object on any foundation, OFCCP states that the objection should embrace a proof as to why the contractor didn’t object in response to earlier notices that OFCCP has issued, and why there’s good trigger for OFCCP to just accept the objection at this level. As Training and the Workforce Committee Chair Virginia Foxx said in a letter to OFCCP’s director final week:
[it] seems that many employers weren’t conscious of the pending FOIA request at OFCCP. The company should do a a lot better job of informing federal contractors, particularly smaller employers, about their rights and obligations. I’m additionally conscious that OFCCP has not supplied info to all related employers about what information might be disclosed in response to the FOIA request. These employers couldn’t decide whether or not to submit objections as a result of they didn’t know what info OFCCP would flip over.
In gentle of the acknowledged flaws in OFCCP’s course of, employers shouldn’t see the duty to point out good trigger as an impediment to submitting objections. Underneath the circumstances, explaining that the employer had not acquired well timed precise discover from OFCCP ought to probably be accepted as adequate trigger for lacking the sooner deadlines.
As well as, OFCCP seems to be requiring employers to incorporate with their objections the group’s EEO-1 unit quantity(s), though some employers could not be capable of entry this info. Employers that aren’t in a position to find their EEO-1 firm or unit numbers shouldn’t be deterred from submitting objections, however ought to clarify that they don’t seem to be in a position to find the quantity.
The total course of for gathering and reviewing objections will now proceed as follows:
- OFCCP says that it’s going to put up an up to date record of non-objectors no later than February 17, 2023. This up to date record will take away contractors that OFCCP has recognized as incorrectly included on the February 2, 2023 record, together with contractor responses submitted by February 10, 2023. It can additionally take away all contractors that submitted objections after the publication of the February 2, 2023 record till February 10, 2023, whereas OFCCP evaluates these objections.
- After the shut of the response interval on March 3, 2023, OFCCP says that it’s going to publish a second up to date record by March 10, 2023, which is able to take away contractors that submitted objections between February 10, 2023 and March 3, 2023, whereas OFCCP evaluates these objections. Contractors will then have one closing alternative to contact OFCCP no later than March 17, 2023, in the event that they imagine their firm was improperly listed.
Lastly, OFCCP nonetheless seems to be centered on figuring out whether or not the requested EEO-1 information consists of confidential commerce secret, business, or monetary info that needs to be withheld pursuant to FOIA Exemption 4 solely. As has been made clear to OFCCP by many filed objections, there are a selection of causes aside from FOIA exemption 4 that require OFCCP to disclaim this FOIA request. It’s unclear whether or not OFCCP is actively contemplating different exemptions. Employers with questions or issues about this course of ought to focus on their choices with employment counsel.
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