EEOC’s revised EEO-1 reporting guidelines continue to require employers with 100 or more employees to submit W2 earnings and hours worked data.
On February 1, 2016, the Equal Employment Opportunity Commission (EEOC), in coordination with the Office of Federal Contract Compliance Programs (OFCCP), published proposed guidelines that will require employers with 100 or more employees to include compensation information on EEO-1 Reports.
On July 13, after considering hundreds of comments received during the comment period, the EEOC published a revised (although substantively similar) proposal for further comment and provided additional information about how it intends to use compensation data.
Consistent with the original proposal, the EEOC’s revised proposal will require employers with 100 or more employees to include two categories of information in their EEO-1 Reports. First, employers will continue to submit ethnicity, race, and sex data by job category as is currently required. Second, employers will be required to submit data regarding employees’ W2 earnings and hours worked. These data will be reported by job category and, within each job category, further broken down across twelve pay bands.
The primary differences between the EEOC’s original proposal (for detail on the original proposal, read our LawFlash, “EEOC Proposes Significant Expansion of EEO-1 Reporting Requirements”) and the revised proposal include the following:
In short, the EEOC addressed certain questions relating to when and what data are to be reported, but otherwise left their proposal largely unchanged.
The EEOC’s July 2016 proposal also identifies three intended uses of the earnings and hours worked data:
The EEOC reiterated that, consistent with federal law, it will keep all company-specific EEO-1 data confidential, unless and until a Title VII proceeding is instituted that implicates the data. Any EEOC staff member who violates this requirement will be guilty of a misdemeanor. The EEOC also stated that it will only release information to other agencies if the agencies agree to comply with the confidentiality requirement and, for state and local agencies, the data provided will be restricted to that relating to employers within the agency’s jurisdiction.
Likewise, the OFCCP will hold any EEO-1 data that it receives confidential to the maximum extent permitted by law, in accordance with Freedom of Information Act (FOIA) Exemptions 3 and 4 and the Trade Secrets Act. In the event the data are requested through a FOIA request, the OFCCP will notify the employer and give it an opportunity to object. If the OFCCP receives objections that it determines are valid, it will deny the FOIA request.
The EEOC also specified the steps it currently takes to ensure data protection, privacy, and security.
Although the EEOC’s proposed revisions may alleviate some of the burden on employers, the core earnings and hours worked data that the EEOC proposes to collect remains the same.
Based on its proposed revisions, the EEOC seems intent on requiring employers to submit earnings and hours worked data, and employers should begin to consider the implications of submitting such data for their own businesses and take appropriate action. This could include conducting internal analyses, on a privileged basis, that assess what the data would show if the company submitted an EEO-1 Report (including the proposed compensation information) now. In addition, employers should consider conducting pay equity analyses to identify the non-discriminatory factors that may explain pay differences, and make any desired pay adjustments. Furthermore, because some pay differences may be the result of differences in representation based on the job type or the level of the position, employers should ensure that they are tracking applicant data on interest and availability for positions.
Employers will have the opportunity to submit comments regarding the revised proposal until August 15, 2016.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Lisa Stephanian Burton
Sari M. Alamuddin
Anne Marie Estevez
Kenneth J. Turnbull
Christopher K. Ramsey
Grace E. Speights