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EEO-1 Reports in Limbo: Awaiting EEOC Filing Guidance

March 26, 2019

By Mitchell J. Cogen

It’s the time of year when EEO-1 filers are preparing to file their EEO-1 reports. Private employers with 100 or more employees and federal contractors and first-tier subcontractors with both 50 or more employees and federal contracts of at least $50,000 must typically complete and file an EEO-1 report by March 31. This year, EEO-1 filers have been granted a 2-month reprieve until May 31 due to the government shutdown.

However, some EEO-1 filers may be wondering what and how to file. You are not alone. The EEO-1 report has been the subject of a number of flip-flopping executive and judicial decisions over the last three years, causing confusion and uncertainty over what and how to file. Here is a review of what’s transpired:

Historically, employers were required to submit EEO-1 reports that included race/ethnicity, gender, and job category information (Component 1 data).

In January 2016, the Obama administration EEOC announced that employers would need to begin reporting additional data on employee pay ranges and hours worked (Component 2 data) to assist in identifying possible pay discrimination. This required employers to compile and report significantly more data than in the past. In preparation for the new reporting requirements, a revised EEO-1 form was released on September 29, 2016, with the first reporting deadline with the new form (for 2017 data) scheduled for March 31, 2018.

But on August 29, 2017, the Trump administration’s Office of Management and Budget (OMB) put a halt to the scheduled implementation of the new EEO-1 including Component 2 data by issuing a stay.

Court challenges followed. On March 4, 2019, the U.S. District Court for the District of Columbia lifted the OMB’s stay on implementing the new EEO-1 form including Component 2 pay and hours work data.

However, as EEO-1 filers are preparing to file their reports, the EEOC portal for submission of EEO-1 forms opened on March 18 without a way to submit the Component 2 data. The court quickly responded on March 19 ordering the EEOC and OMB to provide employers with guidance by April 3 on how employers are to address the use of the new EEO-1 form, including Component 2 data. As of now, employers are in a quandary. They are technically required to file EEO-1 reports with both Component 1 and Component 2 data by May 31, 2019, but there is currently no way to do so.

Employers required to file EEO-1 reports should await further guidance from the EEOC on April 3 to best assess the current situation. Many, if not most, employers will not be ready to file Component 2 data by the May 31 deadline and an extension of that deadline is certainly possible. Additionally, the OMB may yet appeal the judge’s order. In the meantime, employers should work towards finalizing their Component 1 data and determining whether and when they will be able to comply with the new Component 2 data requirements.

We will keep you updated on any new developments. In the meantime, if you have any questions about the new Component 2 data requirements on the EEO-1 form, please contact Bullard Law.

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