Under the Service Contract Act (SCA), certain federal contractors and subcontractors are required to pay service employees in certain occupations the local prevailing wage rate and fringe benefits. To administer these requirements, the U.S. Department of Labor (DOL) publishes the SCA Directory of Occupations, which provides a list of occupations with descriptions of the work performed, and issues wage determinations connected to the occupations listed therein. Employers that are covered by the SCA thus match their covered workers to an occupation listed in the SCA Directory of Occupations and must pay these workers wages and fringe benefits that comply with the related DOL wage determination.
In 2015, DOL created a new occupational classification in the SCA Directory of Occupations for “Customer Service Representative.” However, DOL did not publicly disclose the information the agency relied upon to create this new occupational classification.
On March 7, 2018, Communications Workers of America (CWA) submitted two Freedom of Information Act (FOIA) requests to DOL for the records used by DOL to create this occupational classification and the related job descriptions and federal grade equivalencies. On March 22, 2019, DOL responded to one of CWA’s FOIA requests. DOL stated that it had identified 2000 pages of responsive records but was withholding all records in full under FOIA exemption 7(A), claiming that disclosure could reasonably be expected to interfere with enforcement proceedings. DOL never responded to CWA’s other FOIA request.
In June 2019, represented by Public Citizen, CWA filed a lawsuit against DOL to challenge its failure to respond to one request and its withholding of all records responsive to the other request. After the lawsuit was filed, DOL agreed to a production schedule and began producing responsive records. DOL produced several thousand pages of records but withheld and redacted many pages, claiming that they were deliberative materials covered by FOIA exemption 5. CWA moved for summary judgment, challenging DOL’s assertion of exemption 5 as to a subset of these documents.
After CWA filed its opening brief, DOL removed the challenged redactions. The parties then settled the case, and DOL agreed to pay $39,500 in attorney’s fees and costs.