In the latest development of the long-running saga of whether and when the new requirement to submit compensation data through the EEO-1 form will take effect, a federal district court has now ordered that covered employers must submit such data by September 30, 2019, and the Equal Employment Opportunity Commission intends to begin collection on July 15, 2019. Meanwhile, as of the current time, the traditional demographic data must still be submitted by May 31, 2019.
The Addition of Compensation Data to the EEO-1 Form. Employers who are required to file an EEO-1 form are those with 100 or more employees and federal contractors and first-tier subcontractors with 50 or more employees. The original EEO-1 form sought information regarding the race, ethnicity, and sex of the workforce in 10 job categories (Component 1). In September 2016, the EEOC issued a revised EEO-1 survey form that added the requirement for employers with 100 or more employees (but not federal contractors and subcontractors with fewer than 100 employees) to provide aggregated data for the prior year on pay and hours worked, broken down into 12 pay bands across the 10 job categories, by the same racial, ethnic, and sex groups (Component 2). This data would be drawn from one single payroll period of the employer’s choosing occurring between October 1 and December 31 of the prior (reporting) year. The annual submission period of the form was also moved from September to March. The form was to take effect in March 2018, and the data would be collected for two years.
The Stay and the Litigation. On August 29, 2017, the Office of Management and Budget, which has the responsibility of reviewing all significant regulatory actions before they take effect, informed the EEOC that it was initiating an immediate stay of the pay data collection aspects of the revised EEO-1 form. Litigation ensued, however, with the National Women’s Law Center and other groups suing to enforce the implementation of the revised EEO-1 form. Last month, a federal court found the OMB’s stay to be illegal and ordered the revised EEO-1 form to take effect. The parties then argued over when that would be.
In the meantime, the EEOC announced that the reporting period for Component 1 data would commence on March 15 and end May 31, 2019.
The Court’s Order and the EEOC’s Next Steps. On April 25, 2019, the Court issued an order that the EEOC must collect Component 2 pay data for 2018 by September 30, 2019. The EEOC must also collect either 2017 pay data by that date or 2019 pay data during the 2020 reporting period. The EEOC will announce by May 3, 2019 whether it will collect data from 2017 or 2019.
In a hearing before the court, the EEOC announced that it will be utilizing a contractor – the University of Chicago: National Opinion Research Center – to collect the data. The reporting portal will reportedly open in mid-July and close on September 30, 2019, although the EEOC will allow “straggler” employers to report up to two weeks later.
What Now? Utilizing EEOC’s online portal, employers with 100 or more employees, as well as federal contractors and subs with 50 or more employees, must file Component 1 data by May 31, 2019. (Although the EEOC had previously suggested extending this deadline to September 30, that did not occur). Employers with 100 or more employees (including such employers who are also federal contractors and subs) will also need to file Component 2 data between mid-July and September 30, 2019. The EEOC will announce by Friday, May 3, whether it is collecting data from 2017 this year or from 2019 next year, and will provide additional information regarding the pay data portal at a later time. We will keep you updated on any further developments.