Businesses with 100 or more employees, and federal contractors with 50 or more employees, have long been required to submit Employer Information Reports (EEO-1 reports) disclosing the number of employees in their employ by job category, race, sex, and ethnicity on an annual basis. In 2016, the EEOC announced changes to require employers to include pay data and the number of hours worked for their workforces in their EEO-1 reports in the hopes of identifying pay gaps and investigating pay discrimination practices.
But before the first disclosures were to be submitted in March 2018, the White House scrapped the revised EEO-1 report, as the Office of Management and Budget (OMB) announced that it had significant concerns with the revised reporting requirements.
Several advocacy organizations, including the National Women’s Law Center and the Labor Council for Latin American Advancement, took the White House to court to force the beefed-up EEO-1 report back into service. On March 4, 2019, a federal court judge in Washington, D.C. agreed with their challenge and reinstated the pay data requirement.
This decision raised a significant number of questions and concerns for employers. After all, the window of time for employers to submit their EEO-1 reports (between March 18 and May 31, 2019) was quickly approaching, and many employers were well on their way to having the data for their FY2018 reports completed. To turn around and require employers to collect and organize the necessary pay data (and hours worked) on such short notice would create logistical nightmares. It raised questions such as would the EEOC once again delay the reporting period as it had done several times previously? If not, would employers get a ramp-up period granting them some additional grace when it comes to collecting and reporting the pay data? Or would they need to operate as if this requirement had been in effect the entire time, as the federal court judge had essentially mandated?
In the hopes that these questions would be answered, employers were intensely curious about what the opening of the EEO-1 reporting period would look like once the curtain was raised on Monday, March 18th. The good news is that the agency’s first response to the court ruling provides some much-needed breathing room for employers, with no indication that pay data collection is in any way imminent. When accessing the portal for submitting the EEO-1 report today, there is no method by which employers could provide compensation information even if they wanted to.
The bad news is that questions still remain, and the agency hasn’t yet addressed many of them with today’s development. Its statement, released on its website this morning, simply states: “The EEOC is working diligently on next steps in the wake of the court’s order…which vacated the OMB stay on collection of Component 2 EEO-1 pay data. The EEOC will provide further information as soon as possible.” Left unanswered: Will the EEOC or OMB appeal the judge’s ruling to the D.C. Circuit Court of Appeals? Will the judge’s ruling be put on hold during the pendency of any such appeal? What if the judge responds to today’s EEOC notice with a reprimand to the EEOC requiring it to begin collecting pay data immediately? How could the agency comply if it does not have its own system in place to collect and process the new data? When will employers need to begin providing pay data, if at all?
We fully expect the EEOC or OMB to appeal the judge’s decision and seek a delay of the revised EEO-1’s implementation while the appeal is pending. However, you should operate under the assumption that you will soon have to comply with the revised EEO-1 reporting rules – whether because the judge forces the EEOC’s hand immediately in response to today’s development, or because the appeals court does not agree that the rule should be suspended while the appeal unfolds. While we cannot predict whether either of these events will actually occur, it is best to operate under a worst-case-scenario mindset and prepare accordingly.
This means that you should make it a priority to review current pay systems and identify and address any areas of pay disparity. It is critical to take steps now to minimize increased scrutiny that could soon come your way. By conducting your own audit of pay practices, you will be able to determine whether any pay gaps exist that might catch the eye of the federal government if you are forced to turn over this information. You may have time to determine whether any disparities that may exist can be justified by legitimate and non-discriminatory explanations, or whether you will need to take corrective action to address troublesome pay gaps.