February 16, 2024 – On January 26, 2024, the Office of Federal Contract Compliance Programs (OFCCP) for the U.S. Dept. of Labor (USDL) issued notice to federal contractors after a recent summary judgment order issued by Hon. Judge William Alsup in the case of CIR and Evans v. USDL¹. Based on the Court’s ruling, the OFCCP must produce the balance of roughly 75,000 EEO-1 Reports filed by more than 24,000 federal contractors—despite almost 20% of affected companies having objected—by February 20, 2024.
The plaintiffs in Evans (a non-profit, investigative news organization that publishes Reveal, a news website, and hosts a weekly public radio show) sent four separate FOIA requests seeking disclosure of the subject reports filed between 2016 and 2020. The mandatory annual reports (also known as “Standard Form 100”) contain data about the gender, racial or ethnic background, and job categories of responding companies’ employees.
The OFCCP and six selected bellwether federal contractors objected to producing the reports, arguing that FOIA Exemption 4—which excuses mandatory disclosure for any commercial or financial information obtained from a person or by the government that is also privileged or confidential—precluded the OFCCP from responding to the outstanding FOIA requests. The Court rejected this argument and ultimately found that the information contained in the EEO-1 reports was not inherently or uniquely “commercial or financial” in nature, and thus declined to find that the information was protected from disclosure under Exemption 4.
As a result of the Court’s order, the OFCCP issued this notice to federal contractors, given that this ruling could lead to others who are not subject to these pending requests having the information contained in their mandated EEO-1 reports disclosed in the future. The order requires the OFCCP to produce the withheld reports by February 20, 2024.
A copy of the Court’s summary judgment ruling is here.
A copy of the DOL’s guidance relative to the court’s order is here.
Of course, if you have any questions about how this order may impact your business operations, please reach out to a Kullman Law attorney for assistance.
¹ The Center for Investigative Reporting and Will Evans v. United States Department of Labor (Case No. 3:22-cv-07182, pending in the United States District Court for the Northern District of California before the Honorable Judge.
