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EEOC Revises Its Proposal To Collect Pay Data Through EEO-1 Report

On July 13, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it has revised its proposal to collect pay data from employers through the Employer Information Report (EEO-1). In response to over 300 comments received during an initial public comment period earlier this year, the EEOC is now proposing to push back the due date for the first EEO-1 report with pay data from September 30, 2017 to March 31, 2018. That new deadline would allow employers to use existing W-2 pay information calculated for the previous calendar year. The public now has a new 30-day comment period in which to submit comments on the revised proposal.

Purpose of EEOC’s Pay Data Rule 

The EEOC’s proposed rule would require larger employers to report the number of employees by race, gender, and ethnicity that are paid within each of 12 designated pay bands. This is the latest in numerous attempts by the EEOC and the Office of Federal Contract Compliance Programs (OFCCP) to collect pay information to identify pay disparities across industries and occupational categories. These federal agencies plan to use the pay data “to assess complaints of discrimination, focus agency investigations, and identify existing pay disparities that may warrant further examination.”

Employers Covered By The Proposed Pay Data Rule 

The reporting of pay data on the revised EEO-1 would apply to employers with 100 or more employees, including federal contractors. Federal contractors with 50-99 employees would still be required to file an EEO-1 report providing employee sex, race, and ethnicity by job category, as is currently required, but would not be required to report pay data. Employers not meeting either of those thresholds would not be covered by the new pay data rule.

Pay Bands For Proposed EEO-1 Reporting 

Under the EEOC’s pay data proposal, employers would collect W-2 income and hours-worked data within twelve distinct pay bands for each job category. Under its revised proposed rule, employers then would report the number of employees whose W-2 earnings for the prior twelve-month period fell within each pay band.

The proposed pay bands are based on those used by the Bureau of Labor Statistics in the Occupation Employment Statistics survey:

(1) $19,239 and under;

(2) $19,240 - $24,439;

(3) $24,440 - $30,679;

(4) $30,680 - $38,999;

(5) $39,000 - $49,919;

(6) $49,920 - $62,919;

(7) $62,920 - $80,079;

(8) $80,080 - $101,919;

(9) $101,920 - $128,959;

(10) $128,960 - $163,799;

(11) $163,800 - $207,999; and

(12) $208,000 and over.

Stay Tuned For Final Developments 

The EEOC’s announcement of the revised pay data reporting rule opens a new 30-day comment period, providing a second chance for the public to submit comments on the proposal through August 15, 2016. The EEOC is also formally submitting the proposed EEO-1 revisions to the Office of Management and Budget for consideration and decision. We will keep you posted on any further developments.

Please note that employers required to file an EEO-1 report for 2016 must do so by the normal September 30, 2016 filing date using the currently approved EEO-1 and must continue to use the July 1st through September 30th workforce snapshot period for that report.

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About this Author

Cecilia M. Romero, Holland and Hart, Commercial Litigation Lawyer, Employment Disputes Attorney

Ms. Romero effectively counsels clients involved in matters concerning commercial litigation and labor and employment. She regularly represents clients in proceedings before the federal and state courts, guiding them through the complex litigation process.

She defends employers in a variety of matters, including Fair Labor Standards Act, class actions, wrongful terminations, harassment, and discrimination claims. She litigates disputes involving commercial, oil and gas royalty and employment contracts, non-compete agreements, and tort claims....