Robin Shea, partner with leading national labor and employment law firm (and ThinkHR strategic employment law partner) Constangy, Brooks, Smith & Prophete, LLP, has been following the EEOC pay data saga closely, and reports on the latest developments.
The Equal Employment Opportunity Commission (EEOC) says that it has decided to require employers to submit 2018 and 2017 compensation data with their EEO-1 Reports, which are due September 30. Here is the statement on the EEOC homepage:
Notice of Immediate Reinstatement of Revised EEO-1: Pay Data Collection for Calendar Years 2017 and 2018
EEO-1 filers should begin preparing to submit Component 2 data for calendar year 2017, in addition to data for calendar year 2018, by September 30, 2019, in light of the court’s recent decision in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (D.D.C.). The EEOC expects to begin collecting EEO-1 Component 2 data for calendar years 2017 and 2018 in mid-July, 2019, and will notify filers of the precise date the survey will open as soon as it is available.
Filers should continue to use the currently open EEO-1 portal to submit Component 1 data from 2018 by May 31, 2019.
If you have been following the EEO-1 comp data saga (links to all of our prior posts below), you will remember that the order issued by Judge Tanya Chutkan last week said that the EEOC was required to collect 2018 compensation data by September 30. She also directed the EEOC to require employers to submit comp data for one additional year. The EEOC’s choices were to:
I had predicted that the EEOC would choose 2019, just because that would give the agency and employers more time. After all, the EEOC had told Judge Chutkan that it barely had the capacity to handle the 2018 data this soon.
The EEOC’s choice of 2017 means that employers will really have to scramble.
The EEOC portal for submission of EEO-1 compensation data is expected to open in mid-July. Compensation data for 2018 and 2017 must be submitted no later than September 30. “Category 1” EEO-1 data (the usual stuff) must be submitted by the end of this month, May 31.
Will the government appeal Judge Chutkan’s decision? We should know very soon. But even if there is an appeal, the government would also have to file a motion to stay (suspend) her order, and the appeals court would have to grant the stay, to keep the order from being in effect while the appeal is pending.
“Hope for the best, but prepare for the worst” seems to be the best advice.
By the way, in case you are wondering what the comp data form looks like, here is a sample that the EEOC proposed to use in 2016, before the Office of Management and Budget suspended the requirement in 2017. (Many thanks to the great Cara Crotty, head of our Affirmative Action and OFCCP Compliance practice group, who had the foresight to hang onto this. The form doesn’t seem to be available anywhere on the internet. Well, I take that back. It is now. Te-he.)
Here are links to Robin’s prior coverage of the 2019 EEO-1 comp data controversy:
We aren’t going away, and hope you won’t either!