Surprising Development: EEO-1 Pay/Hours Requirement Reinstated
By Angela Adams, CEBS, SPHR, Director, Human Resource Services
Published March 12, 2019
Last week, a federal judge surprised the business community by reinstating the pay and hours worked elements of the EEO-1 Report. Private employers with at least 100 employees, as well as federal contractors with at least 50 employees and a $50,000 contract with the federal government, are required to file the EEO-1, which historically has mandated race and gender information by EEO-1 category for each location of an employer. (Public employers do not file the EEO-1, although they may need to file the EEO-4 or EEO-5.) The Obama Administration, at the tail end of its term, added two additional required elements: W-2 wage information and the corresponding hours worked for covered employees.
In 2017, the federal Office of Management and Budget (OMB) suspended the wage and hour requirements and left the format of the report as it had been before the changes could be implemented. The government said the data would have limited use, be burdensome to collect, and raise privacy issues. The National Women's Law Center and the Labor Council for Latin American Advancement filed a lawsuit in the United States District Court for the District of Columbia, asserting the data would have use, and arguing the suspension had no merit. Last week, Judge Tanya Chutkan agreed, stating that conflicting views of OMB, by first claiming the collection of the data did have merit, and then saying it did not, without explaining why, was not allowed. The required data elements were therefore reinstated.
The 2018 EEO-1 Report is currently still due by May 31, 2019, after an extension was granted from March 31, 2019 (due to the government shutdown); the reporting website was scheduled to open on March 18. The Equal Employment Opportunity Commission (EEOC) as of this writing has not said what is going to happen. It is unlikely that the EEOC is prepared to accept this data from employers. There is speculation that one of the below will occur.
- The EEOC will appeal the judge’s decision, which could put the stay back in place.
- The EEOC will proceed with the 2018 filing “as-is,” with the report still due May 31, and make plans for the changes to be implemented next year. There is concern that delaying the reporting would violate the order lifting the stay.
- The EEOC will extend the deadline for the 2018 filing again, to give it time to build a system to accept the data.
We are not expecting the pay and hour data to be part of the report due in May. There are too many logistical problems to solve in a short period of time. However, it is not completely out of the question that the EEOC will require it for the upcoming filing. Please continue to read our newsletter and watch your email for additional announcements on what will be required. If you need help filing your EEO-1 Report, please reach out to us at 800-448-4584 or email@example.com. We’ve also scheduled a webinar on the EEO-1 and VETS-4212 Report on April 11, 2019.