The EEOC announced today that it will start collecting 2019 and 2020 EEO-1 Component 1 Data (employment data categorized by race/ethnicity, gender and job category) for private employers beginning in April 2021. Note, this still does not include the controversial Component 2 Data (compensation data). While 2019’s data would have normally been due last year, it was delayed due to COVID-19. Specific collection opening dates will be announced on the EEOC’s website, as well as on the new dedicated website for the agency’s EEO data collections at https://EEOCdata.org. As in previ­ous years, a notification letter will (should) be sent to eligible filers. If you have questions on what an EEO-1 report is or if your business needs to complete one, you can check out other posts on this blog.

Due to COVID-19 and related delays in Federal reporting requirements across the government, the EEOC has recently announced that it is delaying collection of 2019 EEO-1 Component 1 data (employment data categorized by race/ethnicity, gender and job category) until the EEOC resumes normal operations, estimated to be in 2021. An EEO-1 must be filed by all companies with more than 100 employees or federal contractors or first-tier subcontractors with 50 or more employees and a prime contract in excess of $50,000. The EEOC expects the 2019 Component 1 data collection will be collected in March 2021, along with 2020 EEO-1 data. The new deadline will be posted when it is determined, and all EEO-1 filers should receive a notification letter. Finally, the EEOC has stated that it will not collect Component 2 data (employment data categorized by pay) at all in the future (at least under the current administration).

Employers who are required to submit the 2017 and 2018 Component 2 EEO-1 data (wage data) can now do so via the EEOC’s portal here.  In addition, the EEOC has released a FAQ that may answer many employer questions such as filing requirements, summary compensation data, hours worked, multi-establishment reporting, acquisitions and mergers, spinoffs, professional employer organizations, the online filing system, confidentiality and data security.

The saga continues!  Businesses required to file an EEO-1 must submit the usual Component 1 data to the U.S. Equal Employment Opportunity Commission (EEOC) by May 31, 2019. However, whether businesses with 100 or more employees must submit Component 2 pay data has been up in the air since 2016 (you can search my blog for the long convoluted history), when the EEOC first proposed revisions to the yearly report to require employers to report pay data in order to detect discriminatory pay practices. Long story short, on April 29, 2019, the EEOC released the following statement:

EEO-1 filers should begin preparing to submit Component 2 data for calendar year 2017, in addition to data for calendar year 2018, by September 30, 2019, in light of the court’s recent decision…The EEOC expects to begin collecting EEO-1 Component 2 data for calendar years 2017 and 2018 in mid-July, 2019, and will notify filers of the precise date the survey will open as soon as it is available…

While the U.S. Department of Justice appealed the D.C. Court’s decision, such appeal does not stay the Order. According, “Filers should continue to use the currently open EEO-1 portal to submit Component 1 data from 2018 by May 31, 2019”.

Who must file an EEO-1?

Generally, private employers with more than 100 employees, or a smaller company that is an affiliate of an enterprise with over 100 employees. Additionally, federal contractors/first-tier subcontractors subject to Executive Order 11246 (government contract over $10,000) with 50 or more employees, and a prime contract or first-tier subcontract of $50,000 or more. However, the Component 2 data must only be reported by private employers (including federal contractors and subcontractors) with 100 or more employees.

What is Component 1 and Component 2 data?

Component 1 data consists of demographic data of employees by job category, sex, ethnicity and race; this is unchanged. Component 2 data consists of hours worked data and W-2, Box 1 wages, each among twelve (12) pay bands for each job category by sex, ethnicity and race. As for reporting “hours worked”, non-exempt employees are straightforward – report actual hours worked during the calendar year. As for exempt employees, if employees track their time, employers may use actual hours or (for the rest) a 40 hour week for full-time employees, and 20 hour week for part-time employees, multiplied by the number of weeks actually worked in the calendar year.

Now what?

Employers who must file the EEO-1 should be sure to file the Component 1 data by May 31.  Those who also need to file Component 2 data should start gathering the required hours and wages information now (for 2017 and 2018), and begin to prepare to submit the data due in September. Sadly, it’s going to take more time than you think so start now!

On April 3, 2019, the EEOC represented to the U.S. District Court for the District of Columbia that it would require Component 2 data (hours and pay by race, ethnicity and sex) for the EEO-1 report by September 30, 2019.  This is in addition to the May 31, 2019 deadline for the EEO-1 Component 1 data (the regular data that was not contested in litigation recently). The EEOC has not made any formal public announcement, and its website is devoid of any such notice. Accordingly, if you are required to file an EEO-1, you should continue to monitor this issue and importantly – prepare now for the data collection so you are not left scrambling at the last minute.

Employers required to file an EEO-1 (hopefully you know who you are…certain federal contractors/subcontractors), must do so between March 18, 2019 and May 31, 2019 via the EEO-1 website. Importantly, on March 4, 2019, the U.S. District Court for the District of Columbia held that the Office of Management and Budget’s stay of the revised EEO-1 (which sought workforce pay data) was improper. Thus, the DOL may require employers to report employee pay data. If you want more information on how this works, you can read my previous posts (type “EEO-1” in the search bar above). That being said, it is not entirely clear whether the DOL will actually do so this reporting year or delay it a year given the timing. More information is expected to come out in the near future, so I’ll keep you posted (pun intended).

Employers – don’t forget your 2017 EEO-1 report is due by March 31, 2018! Remember this is required to be filed with the EEOC every year, and the preferred method is online here. Also recall, W-2 pay and hours worked data is NOT being collected as the Office of Management and Budget has stayed the EEOC’s collection of that information. If you are a private employer with 100 employees or more, or a federal contractor with 50 employees or more and $50,000 in federal contracts, you should have gotten an email regarding this, and should be filing your EEO-1.

 

 

Not the most exciting news, but rumor has it, the EEOC recently (end of January) finished mailing the 2017 EEO-1 survey Notification Letters to applicable employers.  Who is an “applicable employer”?  Private employers with 100 or more employees and a federal government contractor or first-tier subcontractors with 50 or more employees and a sub/contract of $50,000 or more.

The Notification Letters contain information on how to file the EEO-1 report (of course its all online too www.eeoc.gov/eeo1survey). If your company filed an EEO-1 report in 2016 or meets the criteria for filing the report and have not received the Notification Letter you should immediately reach out to the EEO-1 Joint Reporting Committee at 1-877-392-4647 or e1.techassistance@eeoc.gov.  Don’t forget – the OMB stayed the revised EEO-1 report requiring employers to report employee’s compensation data. Accordingly, employers should continue using the previously approved EEO-1 form that requires employers to report data about employees’ ethnicity, race, and sex by job category, to comply with FY2017 reporting requirements. The deadline for submitting the EEO-1 report is March 31, 2018.

HR Generalists tasked with the EEO-1 report can celebrate.  On August 29, 2017, the White House’s Office of Management and Budget sent a memo to EEOC Acting Chair Victoria Lipnic, stating that it is reviewing the September 29, 2016 pay data collection revisions to the existing EEO-1, and while it does so, the pay data collection will be stayed. In other words, the new data requirement (aimed at determining equal pay issues) is on hold but employers need to be sure to continue to collect the normal data as usual, by March 2018.

In its memo, the OMB noted that the EEOC released data file specifications for employers to use in submitting EEO-1 data that were not contained in the Federal Register notice, and thus, could not obtain public comments: “As a result, the public did not receive an opportunity to provide comment on the method of data submission to EEOC.” Accordingly, “OMB has also decided to stay immediately the effectiveness of the revised aspects of the EEO-1 form for good cause, as we believe that continued collection of this information is contrary to the standards of the PRA (Paperwork Reduction Act). Among other things, OMB is concerned that some aspects of the revised collection of information lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.”

In short, employers may continue using the previously approved EEO-1 form to comply with FY2017 reporting requirements!