David I. Rosen, Clifford D. Dawkins, Jr.
Employment and Labor
April 30, 2019
Based on an April 25, 2019 ruling
by a U.S. District Court judge, covered employers will be required to submit
employee wage or salary information on annually-filed EEO-1 reports, commencing
as early as September 30, 2019. The
EEO-1 filing obligation applies to all employers employing 100 or more persons;
if an employer has a federal contract or subcontract requiring an affirmative
action plan, the employee coverage threshold is reduced to 50 persons.
Since 1966, the Equal Employment
Opportunity Commission (“EEOC”) has required covered employers, on September 30
of each year, to report on EEO-1 forms the number of individuals they employ in
10 different job categories, broken down by sex, race, and ethnicity. The EEOC annually makes publicly available
aggregate EEO-1 information for major geographic areas and industry groups.
On February 1, 2016, the EEOC
announced its intention to amend the EEO-1 form to include a new data
component, by which aggregate W-2 earnings in 12 pay bands for the 10 EEO-1 job
categories would be collected. This
collection requirement purportedly was related to the EEOC’s equal pay law
enforcement activities. The federal Office of Management and Budget (“OMB”)
initially approved the EEOC’s proposed data collection amendment, but
subsequently stayed its implementation on August 29, 2017.
On November 15, 2017, the National
Women’s Law Center (“NWLC”), among other named plaintiffs, filed a complaint in
the D.C. District Court against OMB, asking the court to compel the EEOC’s
collection of two years of pay data pursuant to the suspended regulation. On March 4, 2019, Judge Tanya Chutkan, ruling
in favor of the plaintiffs, lifted OMB’s implementation stay.
In her April 26, 2019 Order, Judge
Chutkan gave the EEOC two options: (a) require covered employers to submit pay
data for calendar years 2017 and 2018 on the EEO-1 forms that they file by the September
30, 2019 deadline, or (b) require covered employers to submit pay data solely
for calendar year 2018 by the September 30, 2019 deadline and, in lieu of the
calendar year 2017 pay data, submit such data for calendar year 2019 during the
2020 EEO-1 reporting period. The Order
requires the EEOC to notify the court of its option decision by May 3, 2019.
The EEOC has expressed to the court
reservations about its readiness to collect the newly required pay data, which
might result in the agency seeking additional time to implement Judge Chutkan’s
Nonetheless, because pay data for
one or two calendar years may need to be submitted on EEO-1 forms by as early
as September 30, 2019, unless the district court or a higher court extends that
deadline, we recommend that employers start preparing to submit such data now.
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