First, What Happened? OFCCP’s Thursday public e-mail Notice providing contractors an opportunity to object to the release of EEO-1 reports requested under FOIA set off a flurry of overnight “mirror report” Blogs reporting OFCCP’s broadly disseminated e-mail Notice. OFCCP then followed on Friday, August 19, 2022, with this more detailed and descriptive Federal Register Notice as the Thursday e-mail had promised and foreshadowed. OFCCP’s e-mail Notice and Federal Register Notice stated that:

“The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has received a request under the Freedom of Information Act (FOIA) from Will Evans of the Center for Investigative Reporting (CIR) for all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Report), filed by federal contractors from 2016-2020. OFCCP has reason to believe that the information requested may be protected from disclosure under FOIA Exemption 4, which protects disclosure of confidential commercial information, but has not yet determined whether the requested information is protected from disclosure under that exemption. OFCCP is requesting that entities that filed Type 2 Consolidated EEO-1 Reports as federal contractors at any time from 2016-2020, and object to the disclosure of this information, submit those objections to OFCCP within 30 days of the date of this Notice.”

Second, What’s Up? Many Bloggers feared OFCCP was on the verge of releasing to the public the copy of the EEO-1 Component 2 filings OFCCP had obtained from the EEOC. (Remember that sentence when you read down…VERY important sentence not seen in the (“let me be first to the keyboard to breathlessly report non time-sensitive information”) Blogs.

As we reported here on April 22, 2019;  here on April 29, 2019; here on May 6, 2019; here on May 28, 2019; here on June 10, 2019; here on June 24, 2019; here on July 8, 2019 (two stories, including the important EEOC e-mail reminder to Title VII-covered “employers” to file their Component 2 information); here on July 15, 2019 (two stories)…and we could go on, you will recall that the EEOC (not OFCCP…dropping another huge hint here…) had required employers with 100 or more employees and which were Title VII-covered, to file certain “Pay and Hours Worked” data (colloquially known as the EEO-1 Component 2 data) with the EEOC (not the OFCCP…dropping same hint…must be important) in 2019 for reporting years 2017 and 2018.

I know none of you can forget that filing: it was a heck of a hullabaloo and according to EEOC Commissioner Dhillon (who was the EEOC Chair at the time), employers and the EEOC spent an astonishing approximately $750 million getting the EEO-1 Component 2 data on file with the EEOC. I know you remember this 2019 excitement, (but I want you to also remember the fine print details…because they are very important here, and everyone has been overlooking them.)

Punchline: OFCCP has no discretion to disclose EEO-1 Component 2 information and thus does not need contractor input as to whether it may or should release the data or whether Exemption 4 to the FOIA (exempts otherwise required federal agency disclosure of documents if they constitute trade secrets) will block OFCCP’s release of the Component 2 data. (By the way: not likely: Good luck with that! No one has ever stopped OFCCP’s release of EEO-1 data OFCCP had obtained from federal contractors. (Boy, did I write that sentence carefully.) Many have tried in the courts over the years seeking to use Exemption 4 as the wedge to stop OFCCP from disclosing EEO-1 information, and ALL have failed.

I drafted the amendment to Exemption 4 to the FOIA in 1973 (became law in 1974) on the heels of the Watergate scandal. I was working for a non-profit First Amendment Washington D.C.-based advocacy group (The Reporters Committee for Freedom of the Press) located next to The White House representing the working press and editors—not the newspapers. But the RCFP work is a whole other Blog. (I know this sounds like an Al Gore-creator-of-the-Internet thing but, you have to understand the background which will become VERY important a few paras down from here as you think about OFCCP’s invitation to oppose release of the Component 2 data based on Exemption 4…a fool’s errand…and the wrong issue.

Spoiler Alert: But think about Exemption 3 (exempts otherwise required federal agency disclosure of documents if they are protected by a federal non-disclosure statute…which are incorporated by reference into Exemption 3). Yeah, another Gore-like thing. I drafted the 1974 amendment to Exemption 3, too. Exemption 3 is the stopper IN THE UNIQUE CIRCUMSTANCES OF THIS PARTICULAR COMPONENT 2 COLLECTION DUE TO A POLICY DECISION THE OBAMA OFCCP MADE TO NOT COLLECT COMPONENT 2 DATA.

My RCFP assignment was to write strong amendments to Exemptions 3 and 4 to make them “tight and narrow” so they did not allow the federal agencies and the courts much discretion to DENY access to agency-held records. Remember, Congress and the American people were still in shock from Watergate a year later in 1973 when I began drafting. The press and the country wanted to know a lot of things from the federal government and from many large private corporations (which the Watergate Hearings in Congress revealed were clearly very cozy with both political parties and had put on file with many federal agencies and the Executive Office of the White House corporate documents of great interest to the public.)

But, back to the plot: Indeed, OFCCP and all its employees are under a specific statutory duty NOT to disclose the at-issue Component 2 Pay and Hours Worked data, as we will see, below. And, indeed, if OFCCP officers were to improperly disclose the Component 2 data, they would mandatorily be subject to both criminal and civil penalties (i.e., once a court were to decide the documents were released improperly (remember, OFCCP is a steward of your company documents), the court would have no discretion and would have to find those responsible for the improper release of the data to be criminally guilty and to financially fine them). WOW! Oh yeah. Really. This is not a laughing matter or a matter to be taken the least bit lightly. (This is probably true even if OFCCP’s lawyers (a) were to advise OFCCP incorrectly to release or (b) a court were to find that Exemption 4 did NOT prohibit release, and OFCCP subsequently released. Oh, savor that thought for a moment. That puts federal disclosure officers in a very difficult position: they must be right about disclosure (not just well-intentioned, but wrong) since they carry fiduciary-like duties and are charged to think about disclosure from a 360-degree point of reference…not just narrowly as to Exemption 4 (even though that particular exemption may not block disclosure. There is still Exemption 3 lurking out there…).

Remember that thought, below, when you start considering strategies to respond to OFCCP’s Notice…since one option is to just “lie in the grass” and say nothing and put the full burden on OFCCP not to screw this issue up. Remember, OFCCP is the steward of your Component 2 data even if you remain silent (and unless you provide consent to the release…which OFCCP oddly failed to request in either of its Notices). The agency now owns a fiduciary-like duty to protect your data if it is protection worthy.

(Indeed, OFCCP may grow to rue the day it made the fateful decision to onboard the Component 2 data from the EEOC. OFCCP will now find that it holds a “hot potato” (like finding an abandoned baby on your porch: you now become responsible to act and do something, or perhaps nothing–depending on applicable law. In this regard, you must go back and re-see NCIS Season 12, Episode 8 (“Semper Fortis”) on this issue of responsibility vs legal authority. For those of you who did not attend Catholic school or study Latin in high school, Semper Fortis means “Always Courageous”). OFCCP will find it MUCH safer to deny access and let the requestor file suit. But then, OFCCP must put forward the right legal arguments to protect its decision, and its liability for an improper release of the documents it is charged to protect, if protection is available. That, by the way, is why OFCCP will lawyer up, and will take a lot of time to carefully decide whether to release or deny access. And this is also why the EEOC will get involved, I predict, and take charge, as noted below.

So, Why Can’t OFCCP Release the Component 2 Data? (It’s a 6-Step Waltz! Let’s go slowly step-by-step…just like dancing classes before the wedding)

 

Step 1

It is first very important to recall that OFCCP (in the Obama administration) chose NOT to participate in what later, eventually, became the 2019 Component 2 Pay and Hours worked EEO-1 data collection for reporting years 2017 and 2018. So, OFCCP did not itself collect the at-issue EEO-1 Component 2 Pay and Hours Worked data from federal contractors. Uh-oh. Underlining…signaling something…an important detail now long forgotten by most, including OFCCP.

And, btw, to make that observation more meaningful, think about why it is that OFCCP addressed its two Notices last week to only federal contractors since the agency (a) has possession of Component 2 data which companies which were not federal contractors filed with the EEOC in addition to (b) having possession of Component 2 data for those employers which were also simultaneously and coincidentally federal contractors with 100 or more employees?

Remember: NO FEDERAL CONTRACTORS were required to file the Component 2 data with the EEOC or OFCCP.

Indeed, the “proof of the pudding” is that those federal contractors with 50 or more employees, but with fewer than 100 employees, were NOT required to file the Component 2 data since (a) the OFCCP did NOT participate in the Component 2 collection AND (b) EEOC EEO-1 filing rules do not attach to employers with fewer than 100 employees. Had OFCCP participated in the Component 2 Pay and Hours Worked data collection, federal contractors with between 50 and 99 employees would have had to have filed. They did not. While it is often difficult to “prove the negative,” it is not so here since OFCCP is on record as having not sought approval to collect Component 2 information from the Office of Management and Budget (“OMB”) in its EEO-1 Information Collection Request. Rather, OFCCP sought permission to collect ONLY Component 1 (race, sex, ethnic) EEO-1 information (having nothing to do with the at-issue EEO-1 Component 2 Pay and Hours Worked data now the subject of the pending FOIA request which has started the current parade.

OFCCP’s absence from the Component 2 collection process is thus revealed not just by the missing authorization from OMB, but also by OFCCP’s Rule at 41 CFR Section 60-1.7(a)(1). That Rule otherwise would have required federal contractors to file the EEO-1 Component 2 data– had OFCCP joined with the EEOC to request OMB authority to require federal contractors to file Component 2 data pursuant to OFCCP’s legal authority… (which derives from Executive Order 11246…and NOT from Title VII. All this minutia you previously thought tedious and irrelevant is slowly starting to creep back into your memory by now, right?)

But that is a dilemma of OFCCP’s making and for OFCCP to figure out. (Or is it OFCCP’s duty alone to shepherd third-party data in its files? Or does the EEOC need to shoulder some responsibility here, too, to the “employers” which filed Component 2 data with the EEOC which is now being threatened with release through the side door…i.e., via OFCCP to which the EEOC delivered the Component 2 data? Well, that is for the Commission to figure out and Chair Burrows might want to put the extensive brainpower of Commissioners Dhillon and Samuels to work on that one, especially before Commissioner Dhillon’s tenure on the Commission times out…).

Spoiler Alert: The EEOC is up to its hips in this latest OFCCP “tempest in a teapot”—whether it knows it or not, as I discuss in more detail below. Hint to EEOC: look at para 4(a) of the 2020 OFCCP/EEOC/DOJ CRD Memorandum of Understanding. And before anybody goes flying off the handle thinking this provision is some devious Trump-era thing, please also know this same provision was in the Obama OFCCP’s 2011 MOU with the EEOC. That provision requires the agency which collected the at-issue data now sought by third parties to decide the disclosure issue:

“4.      Disclosure of Information.

(a) All requests by third parties to this Agreement, including but not limited to charging parties, respondents, and their attorneys, for disclosure of information shall be coordinated with the agency that initially compiled or collected the information. The decision of that agency regarding disclosure shall be honored.”

As an aside, the OFCCP, or perhaps now the EEOC if it gives any credence to the Exemption 4 issue, will likely eventually consider/reconsider whether the more prudent route might have been to mail written Notice to all EEO-1 filers, even if that is nearly 100,000 letters (there were apparently about 90,000 EE0-1 filers of Component 2 data). But, if you take on big files, you take on big responsibilities. Ah, the abandoned baby on the doorstep problem, once again…except it is worse here since OFCCP brought that abandoned baby to its own doorstep and the EEOC dutifully delivered the Component 2 data to OFCCP pursuant to the MOU. Remember, the EEOC cannot just willy-nilly give data away which the EEOC collected, and especially when it is subject to non-disclosure obligations backed by criminal and civil financial penalties, even if the delivery is to other federal government agencies and “kissing cousins” like OFCCP. (The EEOC is going to be fine if it “went by the book” when delivering the Component 2 data to OFCCP via the 2020 OFCCP/EEOC Memorandum of Understanding).

Oh, by the way, the MOU expressly addresses EEO-1 information deliveries (in the first sentence of the agreed information sharing of the MOU) and was one of the primary reasons motivating the execution of the original MOU between the OFCCP and the EEOC. See para 1(a) of the 2020 MOU.

Bottom Line: OFCCP did not itself collect the at-issue EEO-1 Component 2 Pay and Hours Worked data from federal contractors but rather obtained them from the EEOC’s 2019 EEO-1 Component 2 data collection. (BTW, I use data in the plural. See, The New York Times Manual of Style and Usage…the bible for writers…although I sure wish it would approve use of the triple dot…and make me legal!).

Step 2

The Trump OFCCP eschewed any interest in the EEOC’s EEO-1 Component 2 Pay and Hours Worked data collection. (The Trump OFCCP presciently concluded, as you will recall, that the Component 2 data were of no enforcement value to OFCCP, as we wrote about here, and two years in advance of last month’s National Academy of Sciences (NAS) Report which also concluded that the EEO-1 Component 2 data were not helpful for any government purpose as we wrote about here and here).

But, hold on to your hat: enter the Biden OFCCP which reversed course after concluding the Component 2 Pay and Hours Worked data were in fact a valuable enforcement tool to OFCCP as we wrote about here. While OFCCP has not had time yet to wipe the egg off its face in the wake of the recent National Academy of Sciences Report, let alone to publicly comment about that Report of the 3/4ths of a billion-dollar financial catastrophe known as the Component 2 Pay and Hours Worked data collection, it had nonetheless previously summonsed the Component 2 data from the EEOC to OFCCP’s National Office headquarters building.

Red Rover, Red Rover, please send the pay data right over! The OFCCP thus now has in its possession the EEO-1 Component 2 Pay and Hours Worked data FROM THE EEOC (and not of OFCCP’s own collection authority). So now, OFCCP may nonetheless be the proper subject of a Freedom of Information Act (“FOIA”) request for the Component 2 Pay and Hours Worked data. But the legal issue still looms large as to whether and how, if so, the OFCCP may publicly disclose the data now in its possession. That’s why this is a much slower 6-step waltz and not a faster-paced 2-step Rock-N-Roll dance!) Bear with me, you rockers! You are getting close to the heart of the matter, but you have to do the work of the first steps in any dance to get to the later steps and before you can call it a dance.

Bottom Line: The Biden OFCCP obtained the EEO-1 Component 2 Pay and Hours Worked data from the EEOC’s 2019 collection, and not because covered federal Government contractors either filed the data pursuant to OFCCP Rule or delivered the data to OFCCP.

Step 3

But let us next consider why the FOIA requester pointedly did NOT direct his FOIA request to the EEOC which, after all, collected the data and has been sitting on them now for over three years. Well, that’s because Title VII of the 1964 Civil Rights Act—the legal authority under which the EEOC proceeded to collect the EEO-1 Component 2 Pay and Hours Worked data—is one of what the Congress estimated (in passing the FOIA) to be about 100 federal statutes in the United States Code (i.e. the federal laws of the United States) which are so-called “non-disclosure statutes.” These non-disclosure statutes forbid the release of information identified in the statute (like tax returns and classified documents, among many, many other possible examples). There is typically NO discretion to be applied at the federal agency as to disclosure of documents when one or more of these 100 non-disclosure statutes apply.

So, let’s now scroll down to Section 709(e) (titled “Investigations”) [aka 42 U.S.C. Section 2000e-8(e)] of Title VII of the 1964 Civil Rights Act of 1964 (one of my favorite passages of Title VII and one which I used to read to my kids in the evening to put them to sleep …except that it was such a thrilling passage it often kept them awake all night all atwitter):

“(e) Prohibited disclosures; penalties

It shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information. Any officer or employee of the Commission who shall make public in any manner whatever any information in violation of this subsection shall be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than $1,000, or imprisoned not more than one year.” [yellow highlighting added]

Bottom Line: The EEOC cannot release “any information” to the “public” that the Commission obtains. This includes EEO-1 information, including both Component 1 and Component 2 information. This is why, historically, FOIA requesters always went to the OFCCP to obtain EEO-1 information, and not the EEOC. (This step does not get us over to OFCCP yet. Remember, a waltz has a lot of steps and is slow. But hold on to your britches. Take a patience pill—I am really writing this for Candee’s benefit who lacks a patience gene in her DNA!).

Step 4

Ok, so now you are wondering what in the world Section 709(e) of Title VII has to do with OFCCP which is not subject to Title VII? “Who cares,” you ask? Well, you do, of course! Because let’s next think how OFCCP played Red Rover with the EEOC to fetch the Component 2 data to OFCCP’s doorstep to begin this waltz. May federal agencies just willy-nilly summons data and documents from each other? No. Where is that written? The federal agencies need an agreement to exchange data each agency collects and before sharing it with another agency. That is why the federal agencies are always entering into Memoranda of Understandings (“MOUs”) …especially in the Biden Administration which wants to cross-share information between all enforcement agencies so one may rat-out a company under investigation to another agency to trigger that other agency’s enforcement mechanisms. Data sharing is good right? So, let’s see what the latest OFCCP/EEOC Memorandum of Understanding says about OFCCP sharing data with the public which OFCCP obtains from the EEOC. Can’t do it. Stop! OFCCP cannot cry out “Red Rover” and then just escape the EEOC’s prohibition on public disclosure of information the Commission has collected. Nope. Does not work that way. Here’s what the 2020 OFCCP/EEOC MOU says on this timely topic:

“5. Confidentiality.

(a) When EEOC provides information to OFCCP or DOJ CRD under this MOU, the confidentiality requirements of sections 706(b) and 709(e) of Title VII, apply to that information. When OFCCP or DOJ CRD receive the same information from a source independent of EEOC, the preceding sentence does not preclude disclosure of the information received from the independent source. However, OFCCP and DOJ CRD will also observe any confidentiality requirements imposed on such information by the Trade Secrets Act, the Privacy Act, the Freedom of Information Act, or other laws.”

Bottom Line:  OFCCP’s MOU with the EEOC (and also with the US Department of Justice Civil Rights Division) binds all OFCCP employees to comply with Section 709(e) of Title VII’s confidentiality and penalty provisions when receiving information the EEOC obtained.

Step 5

While the FOIA presumes the disclosure of every document in a covered federal agency’s possession or control, Exemption 4 of the FOIA is one of two of the nine FOIA exemptions from otherwise required disclosure and which affirmatively prohibits an agency from releasing data in the agency’s possession. Exemption 3’s prohibitions on release incorporate by reference the many federal non-disclosure statutes as follows:

“(b) This section [requiring disclosure] does not apply to matters that are— […]

(3) specifically exempted from disclosure by statute (other than section 552b of this title), if that statute—

(A)

(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or

(ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and

 

(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph.”

Bottom Line: Exemption 3 to the FOIA incorporates by reference Section 709(e) of Title VII (among other statutes). Per the instructions in Exemption 3 to the FOIA, OFCCP (which is to say the EEOC: see the MOU discussion above) will now need to read Section 709(e) to determine if it leaves any discretion on the issue of disclosure. As we saw above, 709(e) is an absolute prohibition on the “public” disclosure of any information the EEOC obtains. But, here it is again for your convenience: (see yellow highlighting, below):

“(e) Prohibited disclosures; penalties

It shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information. Any officer or employee of the Commission who shall make public in any manner whatever any information in violation of this subsection shall be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than $1,000, or imprisoned not more than one year.”

Step 6

The final step in this 6-step waltz is simply to insure that OFCCP received the EEOC’s EEO-1 Component 2 Pay and Hours Worked data pursuant to the OFCCP/EEOC Memorandum of Understanding. We know from both the EEOC and the OFCCP that OFCCP did not authorize the EEO-1 Component 2 Pay and Hours Worked data. 

First, here is the EEOC’s July 14, 2016 Notice (titled Agency Information Collection Activities; Notice of Submission for OMB Review, Final Comment Request: Revision of the Employer Information Report (EEO-1)) to the public that it was proceeding to the Office of Management and Budget (“OMB”) to seek authority, under only Title VII, to undertake the EEO-1 Component 2 data collection:

“As explained in more detail below, the EEOC has the legal authority to collect pay data under Title VII of the Civil Rights Act of 1964, as amended (Title VII),[fn omitted] ….The EEOC has exercised this statutory authority by implementing a regulation to establish the EEO-1 reporting requirement, and now administers the EEO-1 report pursuant to the PRA.”

     *          *          *          *

Here is that part of the EEOC’s OMB Notice to the public that federal contractors are NOT subject to the proposed EEO-1 Component 2:         

“In sum, all employers with 100 or more employees will be subject to Components 1 and 2 of the EEO-1 starting with reporting year 2017. Federal contractors with 50-99 employees will not experience a change in their EEO-1 reporting requirements as a result of this proposal; they will not file Component 2 and will continue to file only Component 1. Consistent with current practice, federal contractors with 1 to 49 employees and other private employers with 1 to 99 employees will be exempt from filing the EEO-1; they will file neither Component 1 nor Component 2.”

More importantly, OFCCP never sought authority from OMB to collect EEO-1 Component 2 data, as I noted above.

Third, here is the DE Week In Review story from November 25, 2019 reporting that OFCCP had announced in a Federal Register Notice that it “…will not request, accept, or use Component 2 data.” (The Trump OFCCP explained that “…it does not expect to find significant utility in the data given limited resources and its aggregated nature, but it will continue to receive EEO-1 Component 1 data.”) So, this Notice adds that OFCCP did not physically have the EEO-1 Component 2 data and was not planning to take possession of the EEOC’s file any earlier than January 20, 2020 (President Biden’s Inauguration date).

OFCCP went on to state that “…OFCCP will not request or accept EEO-1 Component 2 data. OFCCP will continue to receive EEO-1 Component 1 data from covered contractors and subcontractors through the Joint Reporting Committee for purposes of reviewing their compliance with Executive Order 11246 and its implementing regulations, including the reporting requirements at 41 CFR 60-1.7.”

Bottom Line: OFCCP obtained the EEO-1 Component 2 data from the EEOC via OFCCP’s MOU with the EEOC. The EEOC used its Title VII authority to obtain the data from Title VII-covered employers with 100 or more employees. Section 709(e) of Title VII thus attaches to OFCCP via the MOU and prohibits OFCCP from releasing the EEO-1 Component 2 data to the public. No discretion to apply.

OFCCP should have never sent out its e-mail or its Federal Register Notice. Instead, OFCCP should have consulted with the EEOC per its MOU with the Commission. Indeed, OFCCP should have asked the EEOC FOIA officers whether Title VII would allow the EEOC to authorize OFCCP to release the Component 2 data. The EEOC would have advised pretty quickly (and I suspect in coming days will advise) OFCCP to deny the FOIA request for the EEOC’s Component 2 data in OFCCP’s possession per Exemption 3.

OFCCP should then also consider, as a careful FOIA disclosure officer would–and remembering s/he must be right about this disclosure decision and not just well-intentioned–all possible other (back-up) potential reasons not to disclose (i.e., the potential Exemption 4 objections from the employers which filed the EEO-1 Component 2 data with the EEOC). While it is unlikely there are any, let alone many, valid Exemption 4 corporate objections, in the right circumstances there might be one or two…perhaps. So, the EEOC and the OFCCP should be sure…and need to be right. And, since not all employers which filed EEO-1 reports read the Federal Register or this Blog (although more read this Blog than the Federal Register!), if I were the EEOC disclosure officer who has to make the release/no release decision, I would be looking for a “tight” and compelling legal memo to file concluding that virtual notice via the Federal Register is sufficient notice to potential objectors. Imagine if some court were to order release of the data, or the EEOC were to conclude that release could somehow be made, and some corporation then crawled out of a cave thereafter complaining that it had not heard about the threatened disclosure and would have objected to release pursuant to Exemption 4. But that is something for the EEOC to noodle and weigh and balance legal risks of being found to be wrong.

What happens if OFCCP Decides to “Damn the Torpedoes, and Go Full Speed Ahead” to Disclose the Component 2 Pay and Hours Worked data?

Contractors have two options depending on whether they want retribution, or to stop any OFCCP threatened disclosure.

Retribution

Contractors could suffer the public release of their EEO-1 Component 2 Pay and Hours Worked data, and then seek criminal and financial penalties pursuant to Section 709(e) of Title VII. Not very appealing to contractors for many different reasons, right?

By the way: Yes, private third-party employers may enforce federal government MOUs (in this case the EEOC/OFCCP/DOJ CRD MOU). See Reynolds Metals Co. v. Rumsfeld, 417 F. Supp. 365, 369 (E.D. Va. 1976) (citing Gardner v. Toilet Goods Assoc., 387 U.S. 167 (1967)), and McDonnell Douglas Corp. v. Marshall, 465 F. Supp. 22 (E.D. Mo. 1978).

Injunctive Relief in a federal Court

Contractors could file in federal District Court what is called a “Reverse FOIA” Complaint to stop any threatened OFCCP disclosure of the Component 2 data. I have tried many “Reverse FOIA cases” against OFCCP and have always won an injunction to stop the threatened disclosure. My repeated experience in the courtroom is that the federal courts are very protective of corporate data.

That said, proving that EEO-1 Component 2 Pay and Hours Worked data qualify for non-disclosure pursuant to Exemption 4 as a trade secret would be very difficult for most companies in most factual circumstances, as I have noted above. Not impossible, but I would have to look carefully at the facts, as is true in every case in which one is trying to prove up a Human Resources trade secret.

But Exemption 4 is the wrong argument for most employers which have filed Component 2 data with the EEOC, and which do not want their data used by corporate critics to wrench and twist into claims made out of context and without the needed supporting localized detail. In most fact circumstances involving EEO-1 Component 2 data, it would be more useful to just hit an “ace serve” by proving that OFCCP had no discretion to apply, pursuant to Title VII’s 709(e) confidentiality prohibition. That approach also has the advantage that fact witnesses would not be needed (also helping to reduce litigation costs). Rather, a Court could resolve the case upon cross-motions for Summary Judgment.

The federal Judges I have faced instinctively put a heavy evidentiary burden on the lawyers representing OFCCP to prove the agency has a legal right to disclose. In federal court, OFCCP’s lawyers do not make an appearance. Rather, the U.S. Department of Justice defends the federal agencies in federal courts. An AUSA (Assistant U.S. Attorney) almost always defends OFCCP, an agency the AUSA is hearing about for the first time. That becomes important because Reverse FOIA injunctive cases proceed very quickly and the AUSA has very little time to understand this complex new client and mount a defense.

For the litigators reading this Blog and who want to know how these cases unfold procedurally and substantively, you may want to read a law review article I wrote with Walter B. Connolly, Jr. discussing Reverse FOIA cases, including those arising in the OFCCP context. You may find it in the Fordham Law Review, Vol. 46 at pp. 203-240: “Employer Rights and Access to Documents under the Freedom of Information Act,” or you may contact me directly. The most critical takeaway is that Reverse FOIA cases move very quickly, and you must begin trial preparation the first moment you realize that OFCCP will disclose your client’s Pay and Hours Worked data against its consent.

One example among many: I tried a Reverse FOIA case before Judge Albert V. Bryan III, the then Chief Judge of the federal District Court for the Eastern District of Virginia (Alexandria, across the Potomac from Washington D.C.) only three days after having filed my Complaint against OFCCP. While I knew Judge Bryan well as a young associate lawyer in a Washington D.C. law firm and felt he had taken a special interest in furthering my trial skills in his courtroom from his position on the bench, I was surprised when he denied my request for a 10-day Temporary Restraining Order (TRO) to stop OFCCP’s threatened disclosure 4 days hence. The TRO would have allowed the parties and the Court to have time thereafter to set a trial date (within 10 days of entering the TRO) for a Preliminary injunction (“PI”) to then buy the parties a few weeks or even a few months’ time to prepare for a later Permanent Injunction trial.

Instead, Judge Bryan instructed the parties that he did not need to move in staggered steps from TRO to PI to Permanent Injunction. Rather, the Court hyper-accelerated the case by ordering the parties to trial only two days later, including with my expert witness from out of country. We then tried the case, and the Court entered a permanent injunction restraining OFCCP from releasing the at-issue documents. Who needs sleep when you have every bit of 48 hours to prepare for and brief a complex and technical trial relying on expert witnesses? Beware litigators! If you go down the Reverse FOIA road, sharpen the spikes on your track shoes in advance and be ready to run very fast.

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.

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John C. Fox
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