Hearing Ordered in Pay Data Reporting Case

 

By Allen Smith, J.D., and Lisa Nagele-Piazza, J.D., SHRM-SCP April 12, 2019
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​Employers will have to continue to wait for an answer on when they will have to file EEO-1 pay data, as a federal judge has ordered an April 16 hearing on the issue. 

Worker advocates have told the judge 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 that's not possible. The EEOC instead has proposed Sept. 30 as the deadline that employers must submit pay data reporting. 

"It appears the court is looking to obtain more information," said Camille Olson, an attorney with Seyfarth Shaw in Chicago, Los Angeles and San Francisco. At the hearing, the EEOC and the advocacy groups will present arguments as to why the judge should side with their proposed deadline, and the judge will have the opportunity to ask questions. 

Essentially, the court wants all the stakeholders present to address any outstanding issues so the court can make a final decision, explained Kiosha Dickey, an attorney with Ogletree Deakins in Columbia, S.C. "I am hopeful that the outcome of the hearing is that the court will fully understand the immense burden of requiring employers to submit pay data during the current 2018 EEO-1 Survey cycle," she said.

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 court allowed business groups to submit friend-of-the-court briefs, though the groups can only participate in hearings if the parties agree.

Continue as Planned

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.

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.

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," Dickey said.

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

"With this much data comes a lot of risk for human error," noted Arthur Tacchino, J.D., chief innovation officer at SyncStream Solutions, which provides workplace compliance solutions. The best approach to fulfilling the new EEO-1 requirement is to leverage technology that can aggregate and synthesize the various data points, he added. 

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

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