The OFCCP May Be Planning to Release Your 2016-2020 EEO-1 Reports. What Can You Do?

On August 19, the OFCCP published a notice advising employers that it is planning to produce confidential information that is protected from disclosure under a statutory exemption (Type 2 EEO-1 report data) in response to a Freedom of Information Act (FOIA) request by Mr. Will Evans of the Center for Investigative Reporting. Employers have until September 19, 2022, to file written objections to this disclosure. 

The FOIA request technically covers only federal contractors and their first-tier subcontractors. However, it is not unusual for employers to mistakenly identify themselves as a federal contractor or subcontractor when filling out section 3 of the report, or for the OFCCP to list non-federal contractors as federal contractors on its Corporate Scheduling announcements. It looks like the OFCCP is preparing to produce the confidential Reports of well over 15,000 employers. Employers should not assume that their data will not be produced simply because they are not federal contractors or subcontractors. 

If you do not want your confidential EEO-1 Report data produced, there are a couple of steps that you can take. First, you can contact the OFCCP and ask if your information is among the list that the OFCCP intends to produce, and if so, request a copy of the data. Second, you can file an objection to the production of your data in response to this FOIA request. Written objections and requests for information should be submitted to the OFCCP via U.S. Mail or email and must be received by the OFCCP by September 19, 2022. 

For further information, you can contact Candice Spalding, Deputy Director, Division of Management and Administrative Programs, Office of Federal Contract Compliance Programs, 200 Constitution Avenue NW, Room C-3325, Washington, DC 20210. Telephone: 1-855-680-0971 (voice) or 1-877 -889-5627 (TTY).

As always, don’t hesitate to contact me directly if you have any questions. Jay Stovall (

Federal Appeals Court Affirms NLRB Decision Reinstating Employee Who Defaced Company Overtime Sign-Up Sheet by Writing “Whore Board”

What seemed to be a straightforward termination went sideways for Constellium Rolled Products, a maker of extruded aluminum products with over 13,000 employees worldwide. In 2020 Constellium implemented a new policy by which it started to discipline employees who voluntarily signed up to work an overtime shift and then failed to show up. (Sounds reasonable to me.) The company’s unionized employees preferred the company’s prior overtime system by which the company solicited employees individually about working overtime and did not discipline those who failed to show up.

The union and several employees filed grievances under the company’s collective bargaining agreement and unfair labor practice charges with the NLRB over the change. Some employees began to refer to the sign-up sheet as the “whore board.” One employee, Mr. Williams, went so far as to write “whore board” on the top of each sign-up sheet, which meant that employees who wanted to sign up for overtime had to sign a sheet of paper that identified them as “whores.”  Constellium suspended and then terminated Mr. Williams over the incident. 

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Public Employer Medical Marijuana Law

On August 1, 2022, Act No. 651, the new Public Employer Medical Marijuana Law, went into effect and provides more protections to employees and applicants with a proper recommendation for marijuana, but also creates more questions for public employers across the State. There are a number of issues that are not addressed in the law and will be left to Louisiana courts to resolve, including what employers are actually covered, how this law will impact worker’s compensation insurance agreements, how vicarious liability for injuries caused to others by protected employees will proceed, and the parameters around which covered employers can test employees and applicants and what results can come from any positive tests.

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