UPDATE: Employers Must Submit 2017 and 2018 EEO-1 Pay Data by September 30, 2019

Labor & Employment

On April 25, 2019, a U.S. District Judge for the District of Columbia ruled that, in addition to submitting EEO-1 surveys on employee demographic data to the U.S. Equal Employment Opportunity Commission (“EEOC” or the “Commission”) by May 31, covered employers (e.g., those with at least 100 employees or federal contractors with at least 50 workers and a contract of $50,000 or more) must also report employee pay data to the Commission by September 30.

The Court also ordered the EEOC to collect a second year of pay data, along with pay data for 2018, but left it to the Commission to decide whether it will require employers to go back in their records and also submit pay data for calendar year 2017 by September 30, or just require employers to submit 2019 data (in 2020). The Court ordered the EEOC to make that decision and notify the Court and employers of its decision by May 3.

The pay data portion of the EEO-1 report requires employers to submit wage information and information about hours worked for all full- and part-time employees, organized into categories of race, sex, ethnicity, and one of 10 job categories, and then further sorted into one of 12 government-defined wage bands. While we anticipate that the EEOC will issue further guidance about reporting logistics and other practical considerations in the coming weeks, and while there is also the possibility of an appeal in the current litigation which may impact the reporting deadline, based on the Court’s April 25 Order, employers should begin compiling the required compensation and hours data well in advance of the current September 30 deadline to ensure compliance with the reporting obligations for this year. Employers also would be well-advised to review the data prior to submission to identify, investigate, and/or correct any potential discrepancies or pay gaps that cannot be justified by legitimate, non-discriminatory business reasons.

On May 3, 2019, the EEOC announced on its website and in the Federal Register its decision to collect from covered employers pay data for 2017, in addition to 2018 pay data, by September 30. The EEOC indicated that it expects to begin collecting EEO-1 “Component 2” pay data for 2017 and 2018 from employers in mid-July 2019 and will notify filers of the precise date the survey will be open as soon as it is available. On that same day, the Office of Management and Budget (OMB) filed a Notice of Appeal of the District Judge’s Order reinstating the pay data reporting obligation. The EEOC’s website announcement also included a statement to employers that the appeal does not stay the District Court’s orders, impact employers’ pay data reporting obligations, or the September 30 deadline. Nevertheless, the situation remains fluid, and we will continue to monitor developments and provide updates as they become available, including whether any proceedings in the appeal might affect employers’ reporting obligations or the September 30 deadline. May 31 remains the deadline for employers to submit traditional EEO-1 data, such as race and gender information.

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