Employers who are required to complete EEO-1 reporting already know, or should know, that they may have an additional reporting requirement relative to Component 2 pay data for reporting years 2017 and 2018 — and are required to file this data by September 30, 2019. For more information about EEO-1 Component 2 filing, see our previous article on the topic. This Component 2 pay data requirement and the September 30 deadline have not changed. Employers who are required to file EEO-1 Component 2 pay data for 2017 and 2018 must still do so by September 30, 2019.
On September 12, 2019, the EEOC published a Notice in the Federal Register regarding the collection of EEO-1 data from employers. Surprisingly, this Notice contained a substantially revised burden assessment with regard to the collection and filing of EEO-1 data. In other words, the EEOC took another hard look at the time and effort that many employers, including employers with multiple locations, have to expend in collecting and filing Component 1 and Component 2 data relative to the EEO-1 filing requirement.
Using an updated methodology, the EEOC has now estimated that the burden to employers associated with collecting and submitting Component 1 and 2 data for 2017 and 2018 will be much larger than they had originally estimated. In fact, the EEOC has now estimated that burden associated with the Component 1 and 2 filing will be over $600 million for U.S. employers for each reporting year. Notably, the previous estimate was about $50 million for each of those years.
The upshot of this substantially revised burden assessment is that the EEOC has not renewed its request to collect Component 2 pay data for reporting years after 2017 and 2018.
Based on the revised burden assessment, the EEOC has decided that it will not continue to seek approval to collect the Component 2 pay data for reporting years after 2018. However, the Notice was clear that the EEOC believes that the lesser burden of collecting Component 1 data (which is the demographic data that it has been collecting since the mid-1960’s) does outweigh the collection and reporting burden, and so continues to request this demographic data from employers who are subject to EEO-1 reporting requirements. In other words, it looks like things are going to go back to the way they were before. This means that the 2020 EEO-1 filing (for the 2019 reporting year) will likely only require the demographic Component 1 filing data and not the additional pay data information.
Following a 30-day notice and 60-day comment period, the federal Office of Management and Budget (OMB) will review the EEOC’s new request. If the OMB approves the EEOC’s authorization to continue to collect the Component 1 data going forward, the EEOC will notify employers and provide any new applicable instructions. And while the EEOC has received past authorization to collect the Component 1 data, at this point we’re certain of one thing — that nothing is certain.
In addition, the court case and recent ruling that reversed the OMB’s previous stay on the Component 2 filing requirement, National Women’s Law Center v. OBM, No. 1:17cv2458 (D.D.C. March 4, 2019), is still being appealed. Whether that appeal will be withdrawn, determined to be moot, or otherwise be addressed on the merits relative to the OMB’s actions going forward, is anyone’s guess.
Janice Pintar has extensive litigation experience in the field of employment law and was a plaintiff’s attorney for nearly thirteen years before becoming an HR Consultant in 2015.
Janice Pintar has extensive litigation experience in the field of employment law and was a plaintiff’s attorney for nearly thirteen years before joining Associated Financial Group’s HR Consultants in 2015. She educates and advises Human Resources professionals and employers on a broad range of employment issues and best practices and costly litigation compliance topics including respectful workplace practices, unlawful harassment avoidance, wage and hour issues, medical leaves and accommodations, as well as federal and state discrimination and anti-retaliation issues. Janice received her undergraduate degree from the University of Wisconsin-Milwaukee, magna cum laude, and her law degree from the University of Wisconsin, cum laude.
On May 11, 2014, the governor of Minnesota signed the Women’s Economic Security Act (WESA), a bill that will require Minnesota employers to make dramatic changes to their employment policies and practices.
While WESA directly impacts employers who conduct business in Minnesota, the changes follow plans by federal and local governments to expand legal protections for women and other employees. For this reason, employers in other jurisdictions should pay close attention to these national and state law trends.
“The only thing that is constant is change.”
Turns out that dusty old Greek philosophers occasionally say profound things (Heraclitus also said that a man’s character is his destiny). And since the Greeks are considered the fathers of democracy and were responsible for no small number of laws themselves, it seems an appropriate departure point to talk about the constantly changing landscape of employment laws.
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