Seyfarth Synopsis: Today, the Federal Register included an unpublished version of the EEOC’s announcement that it will collect 2017 and 2018 Component 2 data from employers as part of the Revised EEO-1 collection that will take place by September 30, 2019. This announcement will be formally published in the Federal Register tomorrow.

Revised EEO-1 Pay Data Reporting

As we previously reported, on April 25, 2019, the U.S. District Court for the District of Columbia issued an order requiring the EEOC to collect two years of hours and pay data in connection with the Revised EEO-1 Report (“Component 2”) by September 30, 2019. The Court ordered the collection of 2018 data and ordered that the EEOC collect Component 2 data for 2017 by the September 30, 2019 (or, at its option, collect Component 2 data for 2019 as part of the Spring 2020 EEO-1 reporting cycle). The Court’s order gave the EEOC until May 3 to notify the Court, the Plaintiffs, and the employer community. Pursuant to the advance Federal Register notice, the EEOC has submitted a notice to be filed on Friday, consistent with the Court’s Order, that it will collect both 2017 and 2018 data by September 30, 2019. The unpublished notice on the Federal Register website states:

EEO-1 filers should begin preparing to submit Component 2 data for calendar year 2017, in addition to data for calendar year 2018, by September 30, 2019, in light of the court’s recent decision in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (D.D.C.). The EEOC expects to begin collecting EEO-1 Component 2 data for calendar years 2017 and 2018 in mid-July, 2019, and will notify filers of the precise date the survey will open as soon as it is available.

The notice will be published on the Federal Register tomorrow.

Changes to 2018 Demographic Date Reporting Processes

In addition to the September 30 Component 2 collection periods, Component 1 data (the “original” EEO-1) remains due on May 31, 2019. In a less well publicized action, the EEOC recently revised its process for requesting extensions to the May 31, 2019 deadline. When the EEO-1 Survey site opened in March 2019, the EEOC expressly allowed for an automatic 30-day extension for employers that sent in an extension request before the May 31 deadline. The agency has since made an unannounced change limiting the automatic extension period from 30 days to two weeks. The revised instructions are as follows:

The 2018 EEO-1 report is due on May 31, 2019. To request a two-week extension, please email the request to [email protected] Once the request is received, your company's 2018 EEO-1 report deadline will be extended to June 14, 2019. Your report must be submitted and certified by that date. If your company is requesting an extension beyond two-weeks, please summarize the issue your company is experiencing, and the Employer Data Team will provide assistance. The EEO-1 Employer Data Team can be reach at 1-877-392-4647 (toll-free) or 1-866-262-0032 (fax) from 9 am - 7 pm EST, Monday - Friday.

What Does This Mean for Employers?

Collection of Component 2 data for 2017 in addition to 2018 means that employers will now need to collect and submit twice as much data during the compressed time frame created by the September 30 deadline. As a result, employers should immediately implement the steps needed to collect, aggregate and report on pay and hours data for both years. While litigation options remain, employers are best advised to move forward with implementation measures. Whether your organization prepares reports internally or sends data to a vendor for processing, this is the time move forward the data collection process and identify the critical resources to aggregate, compile, test, and submit the data by September 30, 2019.

The EEOC will submit its first progress report to the District Court and Plaintiffs tomorrow outlining its progress and whether it is on track to meet the September 30 filing deadline set in the Court’s order. We also await additional guidance from the EEOC regarding the specific filing specifications and requirements.