Pursuant to a court order, the EEOC is requiring private employers with at least 100 employees during the fourth quarters of calendar year 2017 or 2018 to file the EEO-1 Component 2 reports on compensation and work hours by September 30, 2019. The filing should be made at the following website: https://eeoccomp2.norc.org/Index. The website also contains a copy of the court order mandating the filing and frequently asked questions about the filing. While the Department of Justice has appealed the decision to mandate the EEOC to collect the component 2 data, we do not expect a ruling on that issue prior to the September 30, 2019 deadline. As the EEOC states on its website: “Please note: The filing of this Notice of Appeal does not stay the district court orders or alter EEO-1 filers' obligations to submit Component 2 data.”

If your company has not yet filed the Component 2 reports, there are few things to keep in mind:

  • Determining employer size may not be a straightforward exercise. Employers who had at least 100 employees during every pay period in the fourth calendar quarter of 2017 and 2018 must file for both years. If an employer’s workforce levels fluctuated above and below 100 employees in the fourth quarter of either calendar year the employer may elect to measure its size in a pay period that fell below 100 employees and not file for the year or years where there was a fourth quarter pay period with fewer than 100 employees.
  • Small government contractors should pay particular attention to the 100-employee threshold for this filing, government contractors with 50-99 employees who were required to make the 2017 and 2018 EEO-1 Component 1 filings are not required to make a Component 2 filing in September.
  • When deciding which pay period to use for the filing, employers may but are not required to use the same pay period they used to make the 2017 and 2018 Component 1 filing.
  • The EEOC has given some guidance on how to report non-binary gender employees. Employers may continue to guess the gender of employees who do not complete a self-identification form which only requests male or female for gender. If an employer uses a form that allows for identification as non-binary, the employer may include non-binary employees in the comment box on the Certification page of the report. The EEOC provides the following example which we suggest any employer electing to use this option follow:

Additional Employee Data: 1 non-binary gender employee working 2,040 hours in Job Category 4, Salary Pay Band 5, Race/ethnicity non-Hispanic White. 3 non-binary gender employees; combined work hours 5,775; in Job Category 5, Salary Pay Band 8; Race/ethnicity: Employee 1 – Non-Hispanic Black, Employee 2 – Hispanic, Employee 3 – Two or more races

  • The compensation information should be the W-2 Box 1 income for the employees in the workforce snapshot (the end of the selected pay period during each calendar year). If the selected snapshot date is not December 31, this likely will include employees who were employed on the snapshot date but not the end of the year. This also will include employees who were hired during the year and whose W-2 forms will not include an entire year of compensation. Employers should not adjust the compensation for partial year employees; simply include what was reported on the W-2 for the relevant year.
  • Hours worked will be the actual hours worked for FLSA non-exempt employees, including over-time. For FLSA exempt employees, employers have the option of reporting actual hours worked if it maintained those records, or reporting a proxy of 40 hour per week for full-time employees and 20 hours per week for part-time employees, multiplied by the number of weeks the employee was employed during the relevant calendar year.