In an effort to promote hiring and promotion of individuals with disabilities in the federal government, the U.S. Equal Employment Opportunity Commission (EEOC) has issued a new question-and-answer guide, which can be found here.
Federal contractors in Virginia, the District of Columbia and nationwide should check out the Office of Federal Contract Compliance Programs' (OFCCP) new website, which aims to make it easier for employers to find and use information relating to compliance with OFCCP regulations. As readers of this blog know, OFCCP has responsibility for various programs relating to anti-discrimination and affirmative action obligations of federal contractors.
In a key ruling for employers who need to protect the confidentiality of information submitted to the Equal Employment Opportunity Commission (EEOC) in connection with charges filed by employees, the U.S. Court of Appeals for the District of Columbia Circuit reversed and remanded this case, instructing the district court to issue an injunction prohibiting the EEOC from disclosing an employer's confidential information to plaintiffs or other third parties without notifying the employer in advance of the disclosure.
At issue were two "irreconcilable" EEOC policies. The EEOC's Compliance Manual allowed the EEOC to disclose confidential information to plaintiffs or other third parties without notifying the submitter in advance of the disclosure. By contrast, the EEOC's regulations implementing the Freedom of Information Act (FOIA) prohibited the EEOC from disclosing confidential information to third parties without notifying the submitter before the disclosure.
The Court held as follows:
[W]e remand this case to the district court to enjoin the Commission from disclosing Venetian’s confidential information without adhering to the notice and other requirements of the agency’s regulations implementing the FOIA. The EEOC's policy of permitting disclosure of confidential information without notifying the submitter is "arbitrary and capricious" in violation of the Administrative Procedures Act (APA) because the discloser without notification policy is inconsistent with the EEOC's own policies under the Freedom of Information Act (FOIA), which require notification to a submitter before any confidential or other information is disclosed. If and when the EEOC provides an adequate justification for the conflict between its policies, the injunction may be dissolved.
The practical upshot is that unless the EEOC provides a coherent rationale reconciling its inconsistent pre-disclosure notification policies, the EEOC must notify the employer in this case before disclosing the employer's confidential information. Going forward, in cases where the EEOC cannot provide a coherent rationale to deviate from the pre-disclosure notification requirements in its FOIA regulations, this decision provides support for the argument that an employer (or other submitter of confidential information to the EEOC) must be notified before the EEOC releases such information to a plaintiff or other third party.
From the perspective of this writer, who represents employers before the EEOC and has handled FOIA matters involving various federal agencies, this outcome seems fair and balanced.
Increasing its on-line advisory tools, the U.S. Department of Labor launched a new "elaws" tool to help employers comply with federal labor laws by determining the recordkeeping, reporting and notice requirements that apply to them.
What are elaws? According to DOL, "The elaws advisors are free, Web-based tools designed to help employers and workers understand the department's major employment laws. By asking a series of questions, the advisors simulate a conversation with a Department of Labor expert and guide users to customized information explaining the requirements of each law. By asking questions such as size of business, location and type of industry through multiple choice or yes and no questions, the FirstStep Employment Law Overview Advisor determines which federal employment laws apply to each user. The advisor then provides information from the Labor Department's Employment Law Guide on the basic provisions of these laws."
Elaws are available at www.dol.gov/elaws/firststep.
