Avoid 7 Common Errors in Filing EEO-1 Reports



​As the March 31 deadline for filing EEO-1 reports approaches, employers who must file the reports should avoid common errors, employment law attorneys say, especially since the filing date has moved from Sept. 30 each year. The last previous EEO-1 report was due Sept. 30, 2016. No EEO-1 report was due in 2017 because the Equal Employment Opportunity Commission (EEOC) moved the filing deadline back to account for a new pay-data reporting requirement that it subsequently suspended.

Companies with 100 or more employees and federal contractors with 50 or more employees and a contract of $50,000 or more must file the EEO-1.

In late February—responding to employer concerns—the EEOC also scrapped a new EEO-1 instruction that employers report about employees who regularly go to client locations using the client's address, according to Jay Patton, an attorney with Ogletree Deakins in Birmingham, Ala.  

Frequent Mistakes

Common filing errors this year may include:                                                                           

1. Pulling data from the first quarter of 2018 rather than correctly pulling data from the final quarter of 2017. Mickey Silberman, an attorney with Fortney & Scott in Denver, noted that because the reporting deadline has changed, there might be confusion about which data should be filed.

2. Failing to count employees properly. The EEO-1 requires separate reports for each employer location with 50 or more employees. For an employer with multiple facilities, there must be a report for each facility and a headquarters report. "This often causes errors when an employer has multiple facilities," said Larry Malfitano, an attorney with Bond, Schoeneck & King in Syracuse, N.Y. "For example, an employee may erroneously be counted twice if he or she works in a certain facility but reports to headquarters."

3. Missing the reporting deadline.

4. Failing to report that an employer has been through a merger, acquisition or spinoff, Patton said.

5. Excluding from the EEO-1 those employees who do not self-identify their race, ethnicity or gender, he noted. "The EEOC provides specific guidance for how employers are required to handle such situations, including a set process for visual identification. However, many employers omit such employees entirely," Patton said.

6. Not accurately classifying job titles into the correct EEO-1 category, noted Matthew Camardella, an attorney with Jackson Lewis in Long Island, N.Y. The EEOC provides definitions for and examples of jobs that fall within each category.

7. Failing to file the EEO-1 because of turnover in HR or a lack of awareness of the filing requirement, he observed.

[SHRM members-only HR Q&A: Can you please explain the filing requirements for the EEO-1 form?]

EEO-1's Uses

Camardella said that the EEOC uses the EEO-1 to better understand:

• The racial, ethnic and gender makeup of the workforce by classification, industry and geography.
  
• The diversity of an employer accused of discrimination when the EEOC investigates a claim.
  

He said that the Office of Federal Contract Compliance Programs (OFCCP) also:

• Uses the report to decide, in part, which contractor establishments the agency will audit for affirmative action compliance.
  
• Collects three years of EEO-1s at the outset of every audit to perform a trend analysis of race, ethnic and gender makeup.
  

But Silberman cautioned that, the EEO-1 "has never been used to impose quotas" in the workforce. Rather, it's used for "diagnostic trend analysis by the EEOC and enforcement by the OFCCP."

New Requirement Suspended

The EEOC initially instructed that, for this filing year, employees who regularly work where a company's customer is located must be reported using the customer's address, as opposed to the employer's address, Patton said. This change "caused a stir in the employer community," he noted, as it would have required employers to track workers remotely assigned and develop new establishment reports for such employees.

Employers were concerned about this additional burden both from an administrative perspective and for its potential impact on future OFCCP audits because an employer EEO-1 could potentially trigger an OFCCP audit at a client location, he stated, potentially causing tension between the employer and the client.

"The buzz in the employer community apparently was felt at the EEOC," which shelved the requirement for this filing year, Patton noted.

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