Federal Contractor Update – Extended Objections to Disclosure of EEO-1 Reports, Revised Directive on Functional Affirmative Action Programs, and New Disclosure Requirements


It was another active month for government contractors and subcontractors. The U.S. Department of Labor and its Office of Federal Contract Compliance Programs (OFCCP) have taken the following actions:

  • Extended Deadline for Objections to the Release of EEO-1 Reports. As we discussed in our August 2022 E-Update, the OFCCP issued a Notice that gives multi-establishment contractors the opportunity to provide written objections to having demographic data from their EEO-1 Reports from 2016-2020 disclosed in response to a specific Freedom of Information Act request (Component 2 pay data has not been sought), on the basis that such information constitutes “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” Originally, the deadline for the submissions of objections was September 19, 2022; this has now been extended until October 19, 2022.

In addition, rather than requiring contractors to figure out by themselves whether they are covered by the FOIA request, the OFCCP has now announced that it will be emailing those contractors it believes to be covered.

There are FAQs for contractors wishing to object to the release of their EEO-1 data, as well as a portal for submission of objections. The OFCCP also details the information that contractors should submit in support of their objection.

  • Revised Directive on Functional Affirmative Action Programs. Many federal supply and service contractors are required to prepare annual affirmative action programs (AAPs). Typically, AAPs are prepared for each contractor establishment; however, the OFCCP allows contractors to organize their AAPs to reflect how they operate functionally, across establishments, if appropriate. Contractors must request an agreement from the OFCCP in order to use a functional AAP (FAAP) arrangement. The OFCCP has announced a revision to its earlier-proposed policies and procedures for requesting, modifying and renewing FAAP agreements – these revisions ease some of the proposed requirements. More information on FAAPs is available from the OFCCP’s FAAP webpage.
  • Expanded Disclosure Requirement for Persuader Forms. Under the Labor-Management Reporting and Disclosure Act of 1959, employers must file a Form LM-10 (i.e. “persuader reports”) with the Department of Labor’s Office of Labor-Management Standards (OLMS) that discloses, among other things, agreements with (typically anti-union) consultants related to persuading employees regarding their organizing and collective bargaining rights. OLMS has issued a proposed rule seeking to amend LM-10 to include a checkbox for employers to indicate whether they are federal contractors or subcontractors, along with their Unique Entity Identifier and the contracting agency(ies) with whom the employer has (sub)contracts.

The ostensible reason for this revision is to permit employees of federal contractors to know whether they, as taxpayers, are indirectly financing persuader activity regarding their unionization rights. Realistically, this is likely intended to discourage contractors from engaging in persuader activity – part of the current administration’s focus on promoting unionization.

Interested parties will have until October 13, 2022 to comment on the proposed rule, which may be submitted here, and OLMS must consider such comments prior to issuing a final rule. We will keep you updated concerning any developments.