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Robert O’Hara Quoted in “High Court FOIA Case May Alter Labor Agency’s Disclosures”

Law360

Robert J. O’Hara, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Law360, in “High Court FOIA Case May Alter Labor Agency’s Disclosures,” by Vin Gurrieri. (Read the full version – subscription required.)

Following is an excerpt:

The U.S. Supreme Court will hear arguments Monday about the standard for invoking a key exception to the Freedom of Information Act in a case that could make it harder for employers with federal contracts to keep the reams of data they send to the Office of Federal Contract Compliance Programs under wraps, experts say.

Although the case — Food Marketing Institute v. Argus Leader Media — isn’t one that directly involves an employment dispute, it could nonetheless have ramifications for workplace law in the way that certain employers move to safeguard confidential commercial information they hand over to agencies like the OFCCP.

The case asks the justices to clarify language contained in the FOIA’s so-called Exemption 4, which protects confidential “trade secrets and commercial or financial information” from being disclosed publicly. …

OFCCP Is Watching

At a recent OFCCP town hall event in Manhattan for legal industry stakeholders, agency Director Craig Leen referenced the Food Marketing Institute case as one the agency is closely monitoring. …

Robert O’Hara of Epstein Becker Green, who recently joined the firm after nearly two decades in-house at aircraft maker United Technologies Corp. and who has overseen hundreds of Department of Labor compliance audits, said the fact that Leen has focused attention on the case means that federal contractors should be keeping tabs on what the agency does in reaction to an eventual decision.

“I think this area, particularly because Director Leen is talking about it, bears watching just to see how they do it,” O’Hara said. …

EEOC Wrinkle May Mean FOIA Uptick

During the Obama administration, the EEOC had proposed a rule that would expand EEO-1 reports to include detailed pay data to help the agency root out pay discrimination. After a lengthy delay imposed by the Trump administration, a federal court recently reinstated the data collection, with a decision expected soon over when employers will have to report that information.

When the additional pay data is combined with the Supreme Court potentially revising Exemption 4, attorneys said it is a recipe for an explosion in FOIA requests for EEO-1 information.

O’Hara, for one, said he expects that the volume of disclosure requests from third parties “will dramatically increase once Component 2 is in the mix.”

“That’s even more information that could be gleaned,” O’Hara said. “My personal opinion is that when that information does get into the hands of the EEOC and OFCCP, I expect an avalanche of FOIA requests over information like that. … That’s another area of concern for companies going forward.”

Since the EEOC can’t legally disclose EEO-1 data, O’Hara also noted that its data sharing arrangement with the OFCCP “is a back door to the EEO-1.”

“That’s why the FOIA requests always go to the OFCCP for the EEO-1 data,” he said.