Employer Pay Data Potentially Protected from Public Disclosure by Supreme Court Decision

June 28, 2019

In a 6 to 3 decision that could have major implications for the public release of pay and workforce data collected by federal agencies, the U.S. Supreme Court held that certain Supplemental Nutrition Assistance Program data provided by stores to a federal agency did not have to be given to a local newspaper under the Freedom of Information Act (FOIA).

High court broadens FOIA protections:  The Court held in Food Marketing Institute v. Argus Leader Media that data provided to a federal agency can be exempted from FOIA disclosure where it is “both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy.”

Impact on employer pay and workforce data:  Although the EEOC is prohibited by Title VII from releasing individual employer EEO-1 data, that data is provided to OFCCP for businesses that are federal contractors, and OFCCP has previously released that data to the public when it has received a FOIA request.  The Supreme Court’s decision better enables OFCCP to shield the company-specific data it obtains from the EEOC and federal contractors from the public and media outlets seeking to report on workplace diversity initiatives.

Takeaway:  The extra protection for data provided to the Department of Labor and the Equal Opportunity Employment Commission comes at an opportune time, as the EEOC is set to begin collecting pay data in EEO-1 reports.  However, OFCCP will need to update its FOIA rules to ensure that it complies with the Supreme Court's decision.