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EEOC Releases Proposed Rule to Collect Pay Data from Employers

Today, on the anniversary of President Obama signing the Lilly Ledbetter Fair Pay Act, the EEOC announced proposed changes to its EEO-1 report, requiring employers to submit employee W-2 earnings and hours worked.  All employers with 100 or more employees would be required to comply.  EEOC and OFCCP would jointly have access to the pay data for enforcement purposes.

Here is an advance copy of the proposed rule and the proposed pay reporting form.

Importantly, while the EEOC’s pronouncements this morning focus only on the gender “pay gap” as the basis for the new requirements, the proposed changes will mandate submission of pay data broken down by race/ethnicity, in addition to gender.

For the past few years, at the President’s direction, EEOC and OFCCP have sought to develop a reporting tool that would require employers to submit pay data on employees nationwide so the agencies can target investigations to address the gender “pay gap.”  This proposal is the culmination of that effort.

The proposed rule will be published Monday, February 1st, and interested parties will have sixty days to submit comments.

Jackson Lewis P.C. © 2020


About this Author

Paul Patten, Employment, Management, Attorney, Jackson Lewis Law Firm

Paul Patten is a Principal in the Chicago, Illinois, office of Jackson Lewis P.C. He represents management in employment cases in federal and state courts and before administrative agencies.

Mr. Patten’s practice focuses primarily on employment litigation and counseling. He represents employers in federal and state individual and class-based lawsuits covering a wide range of statutes and subjects, including federal and state anti-discrimination and wage and hour laws.

Jennifer Seda, Jackson Lewis, affirmative action attorney, OFCCP audit counsel, corporate management lawyer

During the past several years, Ms. Seda has defended hundreds of OFCCP audits, including on-site reviews, corporate management (“glass ceiling”) reviews, and on-sites. This high volume of OFCCP audit defense allows Ms. Seda to keep on top of the OFCCP’s rapidly evolving enforcement trends and develop excellent relationships with OFCCP personnel. As a result, during the past several years, Ms. Seda and the Affirmative Action Practice Group have obtained Letters of Compliance in more than 99.5% of the hundreds of audits they have defended.

Ms. Seda specializes in assisting employers in the development and implementation of employer applicant tracking systems and strategic dispostion codes. Ms. Seda helps employers develop and implement systems that strike a balance between the applicant tracking system’s purpose (to identify the best candidates as efficiently as possible) and the employer’s compliance obligations. This advice also considers strategically using the Internet Applicant Rule to minimize the number of “applicants” who must be tracked and counted against the employer in statistical analyses. Ms. Seda also conducts HR and recruiter training on recruiting and requisition best practices designed to get recruiter “buy in” and stategically protect the employer.

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