On March 4, 2019, the U.S. District Court for the District of Columbia issued a ruling in National Women’s Law Center v. Office of Management and Budget (Civil Action No. 17-cv-2458) vacating:

• The Office of Management and Budget’s (OMB) stay of the Equal Employment Opportunity Commission’s (EEOC) revised EEO-1 form; and
• “Stay the Effectiveness of the EEO-1 Pay Data Collection”, 82 Fed. Reg. 43362, from the September 15, 2017 Federal Register Notice.

The opinion goes into specific detail as to the reasoning behind vacating the stay, the legality of the OMB decision, and much more. But rather than bury you with legal reasoning (for example, the judge found that the OMB provided inadequate reasoning to support its decision to stay the data collection), here are some key takeaways for employers:

• This decision instantly reinstates the EEO-1 pay data collection requirements.
• It’s not over until it’s over. This ruling will likely be appealed by the OMB and EEOC, and a different decision may be released in the future, but that does not change the immediacy of the requirement. Therefore, employers must collect pay data for the current survey period.
• EEO-1 Surveys are currently due May 31, 2019. If the date gets pushed (again), we will update you.

What is the EEO-1 Survey and Who Must Report?

The EEO-1 Survey is a mandatory compliance survey from the EEOC that requires employers to report on employment data categorized by race or ethnicity, gender, and job category, and now, pay data. All employment data must come from one payroll period in October, November, or December of the current year (otherwise referred to as a “workplace snapshot”) and, logically, 2018 is the year that is currently being reported.

The following private employers are required to submit the survey:

• Those who are subject to Title VII of the Civil Rights Act of 1964 (as amended by the Equal Employment Opportunity Act of 1972) with 100 or more employees; or
• Those who are subject to Title VII who have fewer than 100 employees if the company is owned or affiliated with another company, or there is centralized ownership, control, or management (such as central control of personnel policies and labor relations), so that the group legally constitutes a single enterprise, and the entire enterprise employs a total of 100 or more employees.

Why Collect Pay Data?

Employers are now required to collect a summary of employee pay data along with the total hours worked. This requirement was created to better understand wage gaps and pay disparity in the workplace. This data may also assist the EEOC in its studies and reports on pay disparities by race, sex, industry, occupational groupings, and Metropolitan Statistical Area (MSA).

Prior to the requirement for pay data, the EEO-1 form only required reporting on gender, race, and ethnicity of employees as Component 1. The pay data requirement introduced Component 2, where employers must report aggregate W-2 (Box 1) income along with hours-worked data.

Want More Background?

We covered the back-and-forth on this issue as it unfolded. Related posts include:

• August 30, 2017: EEO-1: No Wage and Hours Worked Requirement
• October 3, 2016: EEOC Follows Through: Comp Data Will Be Required in EEO-1 Reports
• February 2, 2016: Is Your Pay Equity Up to Snuff? EEOC Plans to Start Collecting Pay Data, and Using It

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Author: Samantha Yurman, JD

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