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EEO-1 Pay Data Collection Requirements Spring Back to Life

Based on an April 25, 2019 ruling by a U.S. District Court judge, covered employers will be required to submit employee wage or salary information on annually-filed EEO-1 reports, commencing as early as September 30, 2019. The EEO-1 filing obligation applies to all employers employing 100 or more persons; if an employer has a federal contract or subcontract requiring an affirmative action plan, the employee coverage threshold is reduced to 50 persons.

Since 1966, the Equal Employment Opportunity Commission (“EEOC”) has required covered employers, on September 30 of each year, to report on EEO-1 forms the number of individuals they employ in 10 different job categories, broken down by sex, race, and ethnicity. The EEOC annually makes publicly available aggregate EEO-1 information for major geographic areas and industry groups.

On February 1, 2016, the EEOC announced its intention to amend the EEO-1 form to include a new data component, by which aggregate W-2 earnings in 12 pay bands for the 10 EEO-1 job categories would be collected. This collection requirement purportedly was related to the EEOC’s equal pay law enforcement activities. The federal Office of Management and Budget (“OMB”) initially approved the EEOC’s proposed data collection amendment, but subsequently stayed its implementation on August 29, 2017.

On November 15, 2017, the National Women’s Law Center (“NWLC”), among other named plaintiffs, filed a complaint in the D.C. District Court against OMB, asking the court to compel the EEOC’s collection of two years of pay data pursuant to the suspended regulation. On March 4, 2019, Judge Tanya Chutkan, ruling in favor of the plaintiffs, lifted OMB’s implementation stay.

In her April 26, 2019 Order, Judge Chutkan gave the EEOC two options: (a) require covered employers to submit pay data for calendar years 2017 and 2018 on the EEO-1 forms that they file by the September 30, 2019 deadline, or (b) require covered employers to submit pay data solely for calendar year 2018 by the September 30, 2019 deadline and, in lieu of the calendar year 2017 pay data, submit such data for calendar year 2019 during the 2020 EEO-1 reporting period. The Order requires the EEOC to notify the court of its option decision by May 3, 2019.

Employer Tip

The EEOC has expressed to the court reservations about its readiness to collect the newly required pay data, which might result in the agency seeking additional time to implement Judge Chutkan’s Order. Nonetheless, because pay data for one or two calendar years may need to be submitted on EEO-1 forms by as early as September 30, 2019, unless the district court or a higher court extends that deadline, we recommend that employers start preparing to submit such data now.

© Copyright 2020 Sills Cummis & Gross P.C.National Law Review, Volume IX, Number 120


About this Author

Clifford D. Dawkins, Jr. Associate Sils Cummins Newark Employment and Labor Practice Group

Clifford D. Dawkins, Jr. is an Associate in the Sills Cummis & Gross Employment and Labor Practice Group. His practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

While attending law school, Mr. Dawkins was an editor for the Rutgers Race & the Law Review, served as the president of the Student Bar Association, and participated in International Commercial Moot Court competitions in Paris, France and Hong Kong, China. He worked as an Associate Mediator with the Equal Employment Opportunity Commission. Mr....

(973) 643-7000
David I. Rosen, Sills Cummis Gross, Wrongful Dismissal Lawyer, Labor Arbitration Attorney

David I. Rosen has practiced labor and employment law on behalf of management clients since 1977. He handles employment litigation in the federal and state courts, before administrative agencies and through arbitration and mediation, and has broad experience with wrongful dismissal and employment discrimination claims, having successfully defended employers following jury and bench trials. His litigation experience extends to the enforcement and defense of restrictive covenants, NLRB unfair labor practice trials and appellate advocacy. Mr. Rosen also represents employers in labor arbitrations and at the collective bargaining table, advises management on maintaining union-free status, represents employers at NLRB representation proceedings and assists management in developing effective union pre-election campaigns.

(973) 643-5558