More Drama with the EEO-1 Reporting

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By: Miriam L. Rosen, McDonald Hopkins PLC

 

More Drama with the EEO-1 Reporting

 

One form, so much drama.

            Employers with at least 100 employees and certain federal contractors with 50 or more employees must file a Standard Form 100, Employer Identification Report (EEO-1 Form)  annually identifying the number of employees who work for the organization by job category, race, sex, and ethnicity.

            Seems simple enough, but really so much drama.

            For years, employers submitted the EEO-1 Form annually by September 30th reflecting the make up of their workforce for a designated pay period during the preceding months.  Towards the end of the Obama Administration in September 2016, however, the EEOC implemented a new – and highly controversial – component to the EEO-1 reporting by requiring employers to disclose pay data by race, ethnicity, and sex by job category.

            To address the processing related to implementing the new pay reporting requirements, the EEOC pushed the 2017 EEO-1 filing date from September 30, 2017 to March 31, 2018.

            However, in August 2017 with the new Trump Administration in place, White House Office of Management and Budget indefinitely suspended the pay data reporting requirement.  The OMB said the data would have limited use, would be burdensome to collect, and raised privacy concerns.  In contrast, various groups supporting collection of pay data saw things differently.   As you might expect, litigation ensued.

            With the litigation still pending, the EEOC set the date for filing the 2018 EEO-1 data for March 1, 2019.   Then, the partial government shutdown in January 2019 impacted the opening of the portal for EEO-1 data submission. As a result, the EEOC delayed the EEO-1 filing deadline to May 31, 2019 with the portal scheduled to open March 18, 2019.

                       But then, more drama.

            In the midst of those scheduling issues, on March 4, 2019 the federal judge hearing the pay data case ordered the EEOC to reinstate the pay reporting requirements – ASAP.   Initially, the EEOC sought to delay the pay reporting until 2020. However, at an April 3, 2019 hearing, the EEOC indicated that it could implement the pay reporting component by September 30, 2019 by using an outside contractor at a cost in excess of $3 million dollars.

            In its brief to the court, the EEOC noted that the expedited timeline would present “significant practical challenges” in collecting and processing the payroll data.   Of course, no acknowledgement of the practical challenges that employers will face in collecting and processing the data that the EEOC recognizes is actually likely to “yield poor quality data because of the limited quality control and quality assurance measures that would be implemented due to the expedited timeline.”

            So, where do things stand now? The current status is that the standard EEO-1 reporting of race, sex, and ethnicity by job category is due by May 31, 2019.  In the coming weeks, the federal judge will assess the EEOC’s position and make a determination on the pay data reporting deadline.  It’s possible that a second EEO-1 report with pay data by race, ethnicity and sex will be due by September 30, 2019.   Of course, it’s equally possible, that some development will further delay the pay reporting requirement.

            One form, so much drama.

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342.

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