EEO-1 Report – Will Employers Need to Include Compensation Data or Not?

25 March 2019 Labor & Employment Law Perspectives Blog
Author(s): Daniel A. Kaplan

Short Answer: Currently, no. But first, some background.

Generally, employers with 100 or more employees, and certain federal contractors and subcontractors, are required to file an Employer Information Report EEO-1 each year. The EEO-1 is a report of the employer’s work force by job category, sex, race, and ethnicity. In 2016, then-President Obama announced a plan to use the EEO-1 to assist in ending the gender wage gap.

To that end, on February 1, 2016, the EEOC published a notice announcing its intention to seek a three-year approval from the Office of Management and Budget (OMB) for a “revised Employer Information Report (EEO-1) data collection.” Under the proposal, the revised EEO-1 would now contain a “Component 2,” which would include employees’ W-2 earnings, as well as hours worked information for employees covered by the EEO-1. The data was to be reported in an aggregated fashion into 12 pay bands for the 10 EEO-1 job categories.

OMB approved the proposed modification and collection of pay data on the EEO-1 on September 29, 2016. The first report of data was to begin with the 2017 reporting cycle, with respondents to file their reports by March 31, 2018. However, on August 29, 2017, the Trump White House froze these new EEO-1 requirements for a re-evaluation of the burden the new requirements would have on employers, and an analysis of whether such a burden was justified by the information that would be obtained.

Approximately two months later, the National Women’s Law Center and the Labor Counsel for Latin American Advancement sued the OMB, seeking to have the decision to freeze the new EEO-1 implementation reversed and to force the EEOC to collect the wage and pay data that was otherwise required by the new EEO-1 form.

In a decision published earlier this month, Judge Tanya Chutkan of the U.S. District Court for the District of Columbia agreed and ordered the EEOC to reimplement the revised EEO-1 collection process.

Now the question is: Can the EEOC get the tools in place to implement the new EEO-1 collection process, and will employers be required to comply?

The current EEO-1 reporting site for the 2018 calendar year opened on Monday, March 18, collecting Component 1 data (the normal gender, race and ethnicity data), and is scheduled to close on May 31.

However, by March 18, approximately two weeks after the court’s ruling, there had still been no word from the OMB (and the EEOC) on collection efforts associated with Component 2: the wage and hours data (this portal on the site is still not active). Therefore, on March 19, 2019, Judge Chutkan ordered the EEOC to submit a brief explaining the slow pace of compliance with the court’s order.

For now, employers are simply incapable of submitting the pay data on the revised EEO-1: there is no means to do so on the EEO-1 portal. And pundits doubt that the EEOC will have the tools in place to commence such collections by May 31, the date on which the portal closes. Therefore, it is quite likely that the May 31 deadline will be extended, or the wage and hours reporting obligation may be stayed altogether, while the EEOC and OMB appeal the court’s order.

Stay tuned – we will let you know as soon as a decision or implementation begins!

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services