June 17, 2019

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EEOC Publishes Final Pay Data Changes to EEO-1 Report

The Equal Employment Opportunity Commission has issued revisions requiring employers with at least 100 employees to submit annual EEO-1 reports that include W-2 pay and hours worked data for their entire workforces, nationwide.

Armed with the data, and intent upon identifying pay disparities causing the “wage gap” for women and minorities, the EEOC and the Office of Federal Contract Compliance Programs will monitor and test employer data and investigate in detail the pay practices of those employers whose data suggests indefensible pay disparities.

When Will New EEO-1 Report be Required?

The first modified reports will not be filed until the first quarter of 2018. Rather than file EEO-1 reports as usual in the fall of 2017, the revised EEO-1 pay data report will be filed by March 31, 2018.

In subsequent years, March 31 will be the annual filing deadline. Thus, employers will need to pull W-2 pay data only once a year for both tax and EEO-1 reporting purposes.

EEO-1 reports for 2016 will be filed as usual without pay data.

Significant Impact on Employers

For months, Jackson Lewis has been preparing clients and friends for these significant changes. For the first time, the EEOC and OFCCP would have comprehensive employee pay data, allowing the agencies to effectively target employers for systemic pay discrimination investigations.

Employers’ data collection and reporting burdens will increase exponentially and beyond the EEOC’s stated estimates. Further, while the EEOC sought to address confidentiality concerns surrounding submission of sensitive compensation data, the final revisions leave some of those concerns intact, raising new concerns over the Commission’s proposal to publish employers’ aggregated pay data.

What Must Employers Do Now?

  • Conduct Proactive EEO Pay Analyses to Assess Risk: Employers cannot afford to turn over pay data to EEOC and OFCCP without knowing first what it says and whether and where risks may lie. Employers are well-advised to begin preparations now, starting with pay analyses to identify and address pay issues that could emerge from the EEO-1 pay data and arise in systemic investigations by EEOC or OFCCP.

  • Protect Analyses under the Attorney-Client Privilege: Statistical analyses and legal advice based on the analyses must be protected by the attorney-client privilege because the agencies may request the analyses in an investigation. The analyses must not be done informally by the employer’s compensation department or external consultants without the direct involvement of counsel for the purpose of providing legal advice.

  • Speak with IT Function and Outside HRIS and Payroll System Vendors: Gathering and reconciling the data to be reported will be no simple task. Assess the company’s current situation and data systems and determine what will be necessary in terms of staffing and budget.

  • Organization Required to Report? Larger employers are well-aware of EEO-1 reporting obligations. Employers who have not previously filed, but have reached the 100-employee threshold, are required to file EEO-1 reports. EEOC has sued employers solely for failure to file EEO-1 reports in the past. It may use the failure to file an EEO-1 report to support a substantive discrimination claim.

Jackson Lewis P.C. © 2019

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About this Author

Mickey Silberman, Labor and Employment law attorney, Jackson Lewis Law firm, Principal
Principal

Mickey Silberman is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. He is the Chair of the Jackson Lewis Affirmative Action & OFCCP Defense Practice Group and the Co-head of the firm’s Pay Equity Resource Group.

Mr. Silberman and the practice group annually prepare thousands of affirmative action plans for employers in all industries and throughout the country. During the past several years, Mr. Silberman has directed the defense of hundreds of OFCCP audits, including successful defense of Corporate Management (“glass ceiling”) Reviews....

303-225-2400
K. Joy Chin, Jackson Lewis, wage benefits lawyer, affirmative action attorney
Principal

Joy Chin is a Principal in the Long Island, New York, office of Jackson Lewis P.C. Since joining the firm in 1995, her practice has been devoted exclusively to employment law and related litigation and the firm’s regulatory practice.

Ms. Chin has litigated matters before local, state and federal administrative agencies and in state and federal courts. Ms. Chin is a frequent speaker on affirmative action and creating lawful diversity programs and spends much of her time counseling employers on issues relating to diversity, EEO, and affirmative action compliance. Prior to joining Jackson Lewis, Ms. Chin was an Assistant District Attorney in Kings County, New York, and in Nassau County, New York.

631-247-4613
Stephanie E. Lewis, Jackson Lewis, Managing Principal, Policy Litigation Attorney,
Office Managing Principal

Stephanie E. Lewis is the Office Managing Principal of the Greenville, South Carolina, office of Jackson Lewis P.C. She represents employers in employment litigation and advises clients on preventive practices and policies to avoid litigation.

Ms. Lewis has handled all aspects of employment law but focuses on sexual harassment, pay discrimination, and disability discrimination issues in the automotive, manufacturing, retail, and pharmaceutical industries. She regularly presents on employment-related topics to Bar and...

864-672-8048