As we previously reported, the Equal Employment Opportunity Commission (EEOC) published on February 1, 2016 a proposed rule regarding the collection of pay data collected through the Employer Information Report EEO-1. See our prior briefing EEOC Issues Proposed Rule Requiring Employers to Disclose Compensation Data.

On July 14, 2016, following comments from the public on the proposed rule, the EEOC published a “revised” proposed rule for collecting pay data in the EEO-1 report. Significantly, the key provisions of the February proposed rule remain unchanged. The revised proposed rule still requires employers to report on the EEO-1 summary data on compensation by sex, race, ethnicity, job categories, and other data points such as pay ranges and hours worked.

The most significant changes in the revised rule that impact employer-filers are:

  • New Filing Deadline: The reporting deadline due date for the EEO-1 report moved from September 30, 2017 (as originally proposed) to March 31, 2018. There would be no change to the EEO-1 deadline for 2016, which remains September 30, 2016. Under the revised proposed rule, EEO-1 filers would then have until March 31, 2018 to submit the next EEO-1 report, which would include pay data.
  • New Workforce Snapshot Period: Under the revised proposed rule, employers no longer will have to make a special compensation calculation to correspond with the EEO-1 reporting timeframe. With the revised reporting deadline of March 31, employers will be able report compensation data based on the prior calendar year’s W-2 form issued to employees.
  • Clarification of W-2 Data: Employers are to report income provided in “Box 1” of the W-2 form, which includes wages, tips, and other compensation, but does not include pre-tax retirement and benefit deductions. The original proposed rule did not specify which box on the W-2 form should be used for reporting wages.
  • Clarification of Reporting “Hours Worked”: When determining reporting for exempt employees’ “hours worked,” the revised proposed rule clarifies that employers will have the option to use: 1) proxy hours of 40 hours per week for full-time exempt employees and 20 hours per week for part-time exempt employees, multiplied by the number of weeks the individuals were employed; or 2) provide actual hours if the employer tracks hours worked for exempt employees.

The July 14 revised proposal provides a second opportunity for public comment. Comments on the revised proposed rule must be submitted by August 15, 2016, and may be submitted to the EEOC online at http://www.regulations.gov. Although the comment period is ongoing, the revised rule has been submitted for to the Office of Management and Budget (OMB) for review and approval. Upon OMB approval of the revised EEO-1 report, the EEOC will post a notice of approval on its website and notify EEO-1 filers of the approval, reporting requirements, and deadlines.

The revised rule is currently available for review in the Federal Register. More information about the proposed revisions to the EEO-1 report, including the proposed form, a Fact Sheet for Small Business, and a question-and-answer document are available on EEOC’s website here.