UPDATE – Pay Data Required by September 30, 2019

Further action has occurred in the National Women’s Law Center v. Office of Management and Budget case, about which we reported here. Employers will need to report 2018 pay data to the Equal Employment Opportunity Commission (EEOC) by September 30, 2019. While it is clear that employers will be required to report 2018 pay data later this year, it is unclear whether pay data for 2017 will also be required at that time. The EEOC has until May 3, 2019 to decide what time period must be reported on September 30, 2019.

Porter Wright will continue to provide updates on this breaking news as more details become available.

It’s that time of year again. The 2018 EEO-1 Survey is open and must be filed with the Equal Employment Opportunity Commission (EEOC) Office of Enterprise Data and Analytics’ Employer Data Team. Employers must submit their reports by Friday, May 31, 2019.

What is the EEO-1 survey?

Federal law mandates that certain employers submit employment data for compliance purposes. The survey requires employers to submit data on employee race, ethnicity and sex categorized by one of ten job categories. Employers must gather this data from one pay period in October, November or December of each reporting year. Data must include both full-time and part-time employees.

In addition to sex, employers must report data on the following race and ethnicity categories:

  • Hispanic or Latino
  • White (Not Hispanic or Latino)
  • Black or African American (Not Hispanic or Latino)
  • Native Hawaiian or Pacific Islander (Not Hispanic or Latino)
  • Asian (Not Hispanic or Latino)
  • Native American or Alaska Native (Not Hispanic or Latino)
  • Two or More Races (Not Hispanic or Latino)

Who needs to file?

All employers that meet the following criteria must file the EEO-1 report annually:

  • Employers with 100 or more employees (there are some exceptions, including State and local governments, public schools and higher education institutions) or
  • Government contractors subject to federal affirmative action obligations with:
    • 50 or more employees, and a prime contract or first-tier subcontract of $50,000 or more

For coverage purposes, corporate parents, subsidiaries and other affiliates with centralized control or management are considered a “single employer” and their employees are added together. Read literally, the EEOC instructions also require all corporate affiliates to be aggregated for determining coverage, regardless of whether there is common management or control.

How do I collect this information?

Man works to meet the filing deadline

The EEOC requires employers to give employees the opportunity to provide this information through self-identification. Employers may develop a form to distribute to new hires or current employees, inviting them to self-identify their race/ethnicity. Completing the form must be voluntary. If an employee does not provide a response, employers can use other methods, such as employment records or observation, to complete the EEO-1 report.

First-time filers

If your business has never filed an EEO-1 report, the first step is to register online. After answering some initial questions to determine whether your company has previously registered or if it is required to file the EEO-1 report, you will need to complete the registration form, including a contact person’s information. The contact person will be your company’s point of contact for all matters regarding the EEO-1 survey.

Once you receive your company number and login information, save that for future use. You will receive an email containing your password. After you have your login and password, proceed to log in and begin completing your EEO-1 survey.

Pay data not required – yet

There is one bit of “good news” concerning EEO-1 reporting. The Office of Management and Budget has said employers do not have to include pay data when filing their EEO-1 reports in 2019. Earlier in March, the Federal Court for the District of Columbia decided National Women’s Law Center v. Office of Management and Budget and upheld EEOC’s right to begin collecting pay data with EEO-1 reports. The EEOC initiative to require pay data with EEO-1 reports launched during the Obama Administration. But in August 2017, OMB issued a stay keeping EEOC from beginning to collect pay data. In the National Women’s Law Center case, the Court lifted the stay. So now the door is open for EEOC to begin requiring pay data with EEO-1 reports.

The pay data reporting will require employers to aggregate W-2 earnings and hours worked for all employees in each of the ten (10) EEO-1 job categories and then to sort that data by twelve (12) pay bands. However, the EEOC has recently said it needs more time to work through details for requiring the pay data. So your 2019 EEO-1 report does not need to include pay data. But, there is every reason to expect that the obligation will be in place in time for reporting in March 2020.