EEOC’s Proposed Revision of EEO-1 Reports to Include Pay Data
On January 29, 2016, the United States Equal Employment Opportunity Commission (“EEOC”) announced it planned on revising the Employer Information Report (EEO-1). This revision would include collecting pay data from employers, including federal contractors, with more than 100 employees. The EEOC states that the new data will assist the EEOC in identifying possible pay discrimination and assist employers in promoting equal pay in the workplace.

Before theses revisions the EEO-1 data provided the federal government with private sector workforce profiles based on race, ethnicity, sex, and job category. This new proposal would add aggregate data on pay ranges and hours worked. The proposed changes are projected at being implemented by the September 2017 report.

The proposed changes were published in the Federal Register on February 1, 2016. Currently, private employers must file EEO-1 reports, if they meet the following criteria:
• Private employer, subject to Title VII of the Civil Rights Act of 1964, with 100 or more employees;
• Private employer, subject to Title VII of the Civil Rights Act of 1964, with fewer than 100 employees, but the company is owned, or affiliated with another company, or there is centralized ownership, control or management so that the group legally constitutes a single enterprise, and the entire enterprise employs a total of 100 or more employees; or
• All federal contractors (private employers), who:

– Are not exempt as provided by 41 CFR 60-1.5, which include,
• contracts or subcontracts of $10,000 or under;
• contracts and subcontracts for indefinite quantities;
• work outside the United States;
• contracts with state or local governments;
• contracts with religious entities;
• contracts with certain educational institutions
• work on or near Indian reservations

– Has more 50 or more employees, and
• are prime contractors or first-tier subcontractors, and have a contract, subcontract or purchase order amounting to $50,000 or more; or
• serve as a depository of government funds in any amount; or
• is a financial institution which is an issuing and paying agent for U.S. Saving Bonds and Notes.

The proposed revisions to the EEO-1 reporting only affect what type of information must be reported. The criteria for who must report, the collection period and the reporting period will not change under the proposed revisions. Employers will still collect EEO-1 data from any pay period occurring in the months of July through September of the current survey year. The EEO-1 must be filed by September 30th of the same calendar year.

The new proposals will require total W-2 earnings as the form of pay data, which was chosen because it would maximize utility of the EEO-1 pay data while minimizing the burden on employers to collect and report it. Information on a W-2 should include all earned income, including supplemental pay components such as overtime pay, shift differentials and non-production bonuses. Federal law already requires all employers to generate W-2s for each of their employees. However, an issue may arise given the timing of the EEO-1 reports (due September 30), compared to when W-2s are normally generated (at the end of a calendar year).

The EEOC has stated that the new pay data would provide the EEOC with insight into pay disparities across industries and strengthen federal efforts to combat discrimination. The pay data would also allow the EEOC to compile and publish aggregated data that will help employers conduct their own analysis of their pay practices to facilitate voluntary compliance.
The current proposal was developed after recommendations were given from independent studies and the Commission’s work with the President’s National Equal Pay Task Force. Public comments are welcomed by the EEOC and can be submitted until April 1, 2016. To submit a comment go to Federal Register.

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