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And We’re Back – EEO-1 Pay Data Collection Requirements May Be Returning

On March 4, 2019, the United States District Court for the District of Columbia caught the employer community by surprise by ordering the EEO-1 pay data reporting requirement immediately reinstated.


In September 2016, the U.S. Equal Employment Opportunity Commission (EEOC) announced plans to collect employee pay data from covered private employers and contractors, as an additional component to the annual Employer Information Report, or EEO-1 report.  According to the EEOC, collecting W-2 wage information and total hours worked by gender, race, and ethnicity will enable the Commission to evaluate employers’ pay practices and ultimately to “prevent pay discrimination and strengthen enforcement” of federal anti-discrimination laws.

However, on August 29, 2017, the White House Office of Management and Budget (OMB), which had previously approved the EEOC’s rule changes in 2016, put an immediate stay on the EEOC’s plans to collect the additional pay data. The OMB indicated that some aspects of the expanded collection were unnecessarily burdensome for employers, and it needed time to further review the change (citing the Paperwork Reduction Act, which directs federal agencies not to overload business with paperwork).  In November 2017, the Labor Council for Latin American Advancement and the National Women’s Law Center (NWLC) sued OMB, alleging that it violated the Administrative Procedure Act by moving to review a rule it had already approved.

What is happening now?

Now, just 12 weeks before employers’ submissions are due to the EEOC, the district court found the OMB provided inadequate reasoning to support its decision to stay the data collection and ruled that the previously approved revised EEO-1 form “shall be in effect.”

Unless the ruling is stayed pending appeal, employers will be required to collect not only W-2 wage information and total hours worked by gender, race, and ethnicity, but also the number of employees falling within each of 12 pay bands for each job category, ranging from $19,239 and under to $208,000 and over. Employers have been providing race and gender information, but have not been required to provide the pay data.

The looming question is whether the pay data will be required for this year’s reporting period. The EEO-1 reporting deadline is currently set for May 31, 2019, following a delay due to the government shut down. As of now, the EEO-1 survey portal has not yet been opened, and the EEOC has not issued any new instructions or guidance that is typical with the opening of the report.

It remains to be seen whether OMB will appeal the district court’s decision and seek a stay of the use of the form by EEOC pending the appeal.  The EEOC could seek to further revise the reporting guidelines, but the EEOC does not currently have a quorum to act.

We will continue to monitor developments in this area.  In the meantime, employers should continue to prepare to file their 2018 EEO-1 report including taking steps to be prepared to file the pay data components required by the revised form.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume IX, Number 65


About this Author

Mary Kathryn Curry, labor and employment lawyer, polsinelli, law firm

Mary Curry is dedicated to helping clients efficiently and effectively address their litigation needs. As a member of the firm's Labor and Employment practice, Mary represents employers across a variety of industries. She has extensive experience working on employment related cases, from wage and hour matters, discrimination and harassment claims, as well as E.R.I.S.A. and administrative actions. Her experience litigating employment-related cases in federal and state courts, as well as administrative agencies has sharpened her ability to provide effective, accurate...

Conne Bertram Government Contract Lawyer Polsinelli Law Firm

Connie focuses her practice on whistleblower, trade secrets, government contractors and employee mobility counseling and litigation. She frequently conducts confidential internal investigations involving executive-level employees, including alleged fraud, theft or misuse of company data, trade secrets, sexual harassment and code of conduct violations. She routinely counsels, investigates and litigates restrictive covenant and trade secrets disputes between employers and former employees.

Connie has defended complex whistleblower, trade secrets and restrictive covenant litigation across the United States, including claims brought under Sarbanes-Oxley, Dodd-Frank, the False Claims Act and other federal and state employment and whistleblower provisions. Connie also advises clients regarding the development and implementation of effective whistleblower and business ethics policies and programs, the investigation of whistleblower complaints, and the handling of current employees who have “blown the whistle.”

Additionally, Connie advises federal government contractors and subcontractors on the many unique employment, affirmative action and other compliance issues that arise in the government contracts setting, including:

  • Investigating and defending False Claims Act and other whistleblower complaints
  • Conducting internal EEO and pay equity audits and investigations
  • Advising contractors and subcontractors with respect to all aspects of Office of Federal Contract Compliance Programs (OFCCP), Service Contract Act (SCA), and Davis-Bacon Act compliance and defending OFCCP and Department of Labor audits and enforcement proceedings

Clients Connie represent include domestic and multinational organizations in the defense, energy, technology, food service, professional services, real estate and health care industries.

A frequent speaker on a variety of labor and employment, litigation and government contractor compliance issues, Connie regularly speaks at programs, seminars and training conferences concerning the whistleblower provisions of the FCA, SOX and Dodd-Frank, OFCCP compliance, pay equity issues, steps employers should take to address the #metoo movement, sexual harassment and whistleblower policies and investigations, and the development and use of forensic data in litigation. She presents at national conferences and conventions concerning these and other topics, including the American Bar Association Annual Conference, the Industry Liaison Group and the Urban Land Institute. She has been quoted on these and other topics by the Wall Street Journal, the Washington PostLegal TimesCompliance WeeklyLaw360Corporate CounselBloomberg LawBloomberg Business WeekSHRMHR DriveACC and Human Resources Executive.

Connie is the author of Sarbanes-Oxley: A New Whistle Stop for Whistleblowers published in the Labor Lawyer. She authors chapters regarding employment law for the D.C. Bar Manual and is the author of Chamber’s Regional Guide: Employment Law – District of Columbia

Erin Schilling, employment, attorney, Polsinelli law firm

Erin Schilling provides advice, counsel, and peace of mind so that employers can focus on what they do best – operating their businesses.

She draws on prior experience in the human resources field to provide training and advice to employers on compliance with various state and federal statutes, including Title VII, the Fair Labor Standards Act, affirmative action laws, and, in particular, leave issues concerning the Family Medical Leave Act and the Americans with Disabilities Act. 

In addition, Erin oversees the...