On April 25, 2019, the United States District Court for the District of Columbia issued a written Order directing the EEOC to collect two years of Component 2 pay and hours data from covered employers by September 30, 2019. However, the court gave the EEOC two choices for the reporting periods:

  • Option 1: Collect EEO-1 Component 2 data for 2017 and 2018 by September 30, 2019; or
  • Option 2: Collect EEO-1 Component 2 data for 2018 by September 30, 2019 and collect EEO-1 Component 2 data for 2019 during the 2020 EEO-1 reporting period.

On May 3, 2019, the EEOC announced that it had selected Option 1 - it will collect Component 2 data for 2017 and 2018 by September 30, 2019, and it plans to open its related data portal and publish the filing instructions in July 2019. The EEOC website announcement entitled “Notice of Immediate Reinstatement of Revised EEO-1: Pay Data Collection for Calendar Years 2017 and 2018’ can be found here: https://www.eeoc.gov/.

Although there is now an official plan in place for the filing of pay and hours data, how and when this plan will be executed remains uncertain leaving employers facing questions about how to proceed. Specifically:

  • The EEOC’s plans to change the reporting format (from that published in 2016) means that employers will have less than three months (from July 2019 when the EEOC anticipates publishing the new format and instructions to September 30, 2019) to scramble to attempt to organize two years of data;
  • The EEOC’s own Chief Data Officer has stated under oath that even with the help of an external contractor, the agency may not be able to develop a secure data portal by September 30;
  • The EEOC and other defendants appealed the Court's decision to the United States Court of Appeals for the District of Columbia Circuit, which may or may not issue a stay of the District Court’s Order and/or reach a decision on the appeal before September 30.

What Should Employers do Amid Skepticism and Uncertainty?

While we all stay tuned to see what the DC Court of Appeals does regarding the appeal and the EEOC’s new format for the data collection, employers need to evaluate the risk of waiting to begin the process of data gathering and evaluation. The penalty for failing to file on time is that the EEOC can seek a court order directing the employer to file. Small companies with few locations and a healthy risk tolerance may make a different decision than large employers. That said, without investing significant time or resources, employers can contact their payroll companies to see the status of their preparation.