Employee Advocates Push for May 31 EEO-1 Pay-Data Reporting Deadline

Judge has yet to decide on the matter

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Worker advocates told a federal judge on April 8 that they want the Equal Employment Opportunity Commission (EEOC) to collect employers' pay data, sorted by race, ethnicity and sex, by the same May 31 deadline that employers must submit other EEO-1 information—or clearly show why doing so is not possible. 

The judge has yet to rule on the matter; a hearing has been scheduled for April 16.

The pay-data requirement has been disputed in court, and employers have been waiting to hear if they need to submit the data at all. Now they may need to rush to do so.

Businesses with at least 100 employees and federal contractors with at least 50 employees and a contract with the federal government of $50,000 or more 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.

As the court case unfolds, covered employers should keep in mind that they still must submit their 2018 data for Component 1 of the EEO-1 form by 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.

"The EEOC will provide further information as soon as possible," an agency spokeswoman said. "Please continue to monitor the EEOC's website."

The Court Battle

The EEO-1 form was revised during President Barack Obama's administration to add the Component 2 data, but the pay-data provisions were suspended in 2017 by President Donald Trump's administration. 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, however, the EEOC opened the portal for employers to submit EEO-1 reports without including the pay-data questions. The judge subsequently told the EEOC and the Office of Management and Budget (OMB) to come up with a plan.

The EEOC proposed a Sept. 30 deadline for employers to submit Component 2 data, claiming that 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 rushing the data collection may yield poor quality data.

EEOC acting Chair Victoria 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. 

Even with the additional time, the EEOC said it would need to spend more than $3 million to hire a contractor to provide the appropriate procedures and systems.

On April 8, the worker-advocacy groups asked the court to reject the EEOC's proposal and direct the agency to:

  • Inform covered employers by April 12 that they should be prepared to submit pay data during the current EEO-1 reporting period.
  • Develop a plan to open pay-data collection well before May 31 so employers can submit Component 1 and 2 information together by that date, or clearly show by April 19 why doing so isn't possible.

The EEOC's and OMB's "belated assertions regarding the impossibility of complying with the court's order … would leave plaintiffs at risk for not obtaining the very remedy that was ordered by this court," the advocacy groups said. They called the government's assertions unsubstantiated and claimed that the "prolonged delay in compliance" is not warranted.

Employer Burden

The Society for Human Resource Management joined the U.S. Chamber of Commerce and other business groups in asking the court to consider the employer perspective before making a decision.  

The groups said they are committed to ending discrimination in the workplace, but they argued that requiring employers to submit Component 2 data "in the near future" would "impose an extraordinary and wholly unrealistic burden on employers."

The court should consider "the practicalities of the workplace and employers' systems and resources" to ensure "the reasonableness of any timetable for an employer's compliance with a completely new law and substantially expanded record-keeping obligation," the business groups said in a document filed with the court.

Make a Plan

While employers are waiting for answers, they should think about how they would pull the relevant Component 2 pay data. 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.

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

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.

The EEOC will have to provide an updated form, and employers will need to become familiar with it 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, said Cheryl Behymer, an attorney with Fisher Phillips in Columbia, S.C. 

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."

For now, employers should focus on pulling the Component 1 data. "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 work toward the May 31 deadline," noted Kiosha Dickey, an attorney with Ogletree Deakins in Columbia, S.C. 

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