EEOC Proposes Sept. 30 Due Date for Pay Data Reports

EEO-1 filing deadline for Component 1 data is still May 31

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[Update: The plaintiffs told the judge on April 8 that they want the EEOC to collect EEO-1 pay data by the May 31 deadline for employers to submit other EEO-1 data or show cause why doing so is not possible. The judge set an April 16 hearing on the matter.]

The Equal Employment Opportunity Commission (EEOC) recently told a federal judge that it plans to require employers to turn over pay data, broken down by race, gender and ethnicity, by Sept. 30.

The EEOC's court submission was in response to the judge's order to begin collecting the information. The worker-advocacy groups that challenged the federal government's prior decision not to collect the pay data have until April 8 to respond to the EEOC's Sept. 30 plan, and the judge still has to decide on the matter. 

An EEOC spokeswoman confirmed that the deadline for employers to submit their 2018 information for "Component 1" of the EEO-1 form is still May 31. Component 1 asks for the number of employees who work for the business by job category, race, sex and ethnicity. "Component 2" data—which includes hours worked and pay information from employees' W-2 forms by race, ethnicity and sex—is the subject of the legal dispute.

"As a result of the court's reinstatement of the revised EEO-1 Component 2 collection, the EEOC will need to modify or adjust the deadlines for employers to collect retroactively 2018 Component 2 pay data and submit the relevant data to the EEOC by Sept. 30, 2019," the agency wrote to the court.

The EEOC said it will provide further information as soon as possible and that employers should continue to monitor the agency's website.

More Time Needed

EEOC Acting Chair Victoria Lipnic said the agency needs more time to address the challenges of collecting the pay data, according to a document filed with the court on April 3. Furthermore, the EEOC's chief data officer warned that an expedited data-collection process may yield poor quality data.

The court submission outlined the EEOC's plan, as requested by the court, to collect the data on pay and hours worked, said Kiosha Dickey, an attorney with Ogletree Deakins in Columbia, S.C. She noted that the EEOC has not officially announced a new deadline of Sept. 30 for either the current filing requirement of Component 1 data or filing Component 2 data. "It is yet to be seen if EEOC's proposed plan to the court will actually take effect."

Employers should consider how they will collect the 2018 data for Component 2 in time to meet the proposed deadline in case it remains in place, said Cheryl Behymer, an attorney with Fisher Phillips in Columbia, S.C. 

Sept. 30 is the day before the 2019 data-collection period begins. EEO-1 surveys must include employment data from any pay period from October through December. Employer organizations that disagree with the 2018 pay data being due on Sept. 30 might file independent legal actions challenging the deadline, Behymer noted.

"Until the EEOC officially announces anything to the contrary, employers should continue to move ahead on the 2018 EEO-1 filings without pay data and working towards the May 31 deadline," Dickey said.

Background

Businesses with at least 100 employees and federal contractors with at least 50 employees and a contract of $50,000 or more with the federal government must file the EEO-1 form. The EEOC uses information about the number of women and minorities companies employ to support civil rights enforcement and analyze employment patterns, according to the agency.

The EEO-1 form was revised during President Barack Obama's administration to require employers to report pay information from workers' W-2 forms by race, ethnicity and sex. However, the pay-data provisions were suspended in 2017 by President Donald Trump's administration.

Employers who oppose the expanded data collection said the W-2 income data that would be collected doesn't provide adequate information about pay disparities.

[SHRM members-only HR Q&A: What are the filing requirements for the EEO-1 form?]

Several worker-advocacy groups challenged the Trump administration's hold on the pay-data collection provisions, and on March 4, a federal judge lifted the stay—meaning the federal government needs to start collecting the information.

On March 18, the EEOC opened the portal for employers to submit EEO-1 reports but did not include the pay-data questions. The judge subsequently gave the EEOC and the OMB until April 3 to tell employers if they will have to report pay data this year.

Lipnic "has determined that it is necessary to exercise her … administrative authority to adjust the collection deadline to Sept. 30, 2019, in order to accommodate the significant practical challenges for the EEOC to collect … data in response to the court's order," the agency told the court. To collect the data by Sept. 30, the EEOC said it would need to spend more than $3 million to hire a contractor to provide the appropriate procedures and systems.

Compliance Tips

The revised EEO-1 form will require employers to report wage information from box 1 of the W-2 form and total hours worked for all employees by race, ethnicity and sex within 12 proposed pay bands.

The reported hours worked should show actual hours worked by nonexempt employees, and an estimated 20 hours per week for part-time exempt employees and 40 hours per week for full-time exempt employees.

At some point in the near future, the EEOC will have to provide an updated form, which employers will need to become familiar with so they can accurately report the information to the EEOC by the deadline, said Arthur Tacchino, J.D., chief innovation officer at SyncStream Solutions, which provides workplace compliance solutions.

Employers will need to figure out how to split the W-2 pay data into the 12 pay bands required for each of the 10 EEO-1 categories, Behymer noted.

The best approach to fulfilling the new EEO-1 requirement is to leverage technology that can aggregate and synthesize the various data points, Tacchino said. "With this much data comes a lot of risk for human error."

Use software or technology that can programmatically handle the data to ensure compliance, he added. Employers can begin to gather the data in standardized reports from their human resource information systems, but ultimately they may want to find a vendor that can provide technology to back up the report, he suggested. 

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