Chapter Two in the EEO-1 Pay Survey Flap

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Pay parity

Robin Shea, partner with leading national labor and employment law firm (and ThinkHR strategic employment law partner) Constangy, Brooks, Smith & Prophete, LLP, gives an update on the latest EEO-1 drama.

Better start gathering that 2018 pay data, just in case.

So much has been happening so fast with this EEO-1 pay survey controversy that I decided to wait until the latter part of the week in the hopes that it would sort itself out.

Here’s the latest (I think):

On Monday, the Equal Employment Opportunity Commission posted on its website that it was “working diligently on next steps” with respect to the decision issued earlier this month by a federal judge in the District of Columbia, which lifted a stay on the pay survey requirement.

Meanwhile, the EEOC portal for uploading 2018 EEO-1 Reports is now open but is accepting only “Component 1” data (the usual stuff). The pay survey is “Component 2.”

Apparently the plaintiffs in the lawsuit that resulted in the judge’s order were displeased with the EEOC’s actions/inactions. The parties had a status conference yesterday with the judge, Obama appointee Tanya Chutkan, and according to news reports, Judge Chutkan gave the defendants (the Office of Management and Budget and the EEOC) until April 3 to tell employers when and how to submit pay data.

And, the judge reportedly chastised the government for failing to take that action promptly after her March 4 decision. This is from today’s “Morning Shift” in POLITICO:

JUDGE BLASTS EEOC: A district court judge on Tuesday slammed attorneys representing OMB and the EEOC for not doing more to notify businesses of court-reinstated requirements for certain employers to submit pay data broken down by race, ethnicity and gender . . .. Judge Tanya Chutkan asked the government attorneys why EEOC didn’t publish a notice on its website in the days after her March 4 order rescinding OMB’s stay of Obama-era changes to the so-called EEO-1 form requiring the pay breakdown. The order came just two weeks before employers were to begin filing the EEO-1 form to the agency on March 18. “The longer you wait to tell them they need to collect it, the longer it’s going to take,” Chutkan said during a status hearing Tuesday.

(Bold and caps in POLITICO blurb.)

At this point, it appears that employers who have not already done so should start gathering their 2018 compensation data now.

Of course, the OMB and EEOC may intend to appeal Judge Chutkan’s decision to the U.S. Court of Appeals for the District of Columbia Circuit. Fun fact: The OMB official who issued the stay, Neomi Rao, has now been confirmed as a judge on the D.C. Circuit, replacing Brett Kavanaugh. (I am sure that Judge Rao will not participate in this particular appeal, though.)

We are continuing to monitor, and we’ll give you an update after the April 3 hearing, if not sooner.

Stay in the Know

We reported on the reinstatement of the pay data requirement on March 8. Get breaking news on the next chapter in the EEO-1 saga and many other people risk management topics that you need to take action on. Subscribe to this blog.

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