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EEOC Publishes Revised EEO-1 Report Proposal to Collect Pay Data

July 15, 2016

WHAT: The Equal Employment Opportunity Commission (EEOC) issued a notice yesterday announcing that it has amended the proposed revision it published earlier this year to the Employer Information Report (EEO-1). As we discussed here, the proposed revision issued earlier this year would require employers, including federal contractors, with 100 or more employees to report pay information beginning in 2017. The intent of the revised EEO-1 is to assist EEOC and the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) in identifying possible pay discrimination and assist employers in promoting equal pay in their workplaces. The key features of the notice are: (1) clarification that employers should use Box 1 of Form W-2, which includes wages, commissions, tips, bonuses, overtime, and other supplemental pay, as the measure of pay on the proposed EEO-1 report; and (2) an extension of the reporting deadline for all EEO-1 filers to March 31st of the year following the EEO-1 report year. Thus, the 2017 EEO-1 report would not be due until March 31, 2018.

WHEN: The notice was published in the Federal Register on July 14, 2016. The public will have until August 15, 2016 to submit comments. If the proposed revisions to the EEO-1 are finalized, they would affect employer reporting on 2017 employment data. Employers should note that for the upcoming 2016 EEO-1 report, the filing deadline will remain September 30, 2016.

WHAT DOES IT MEAN FOR INDUSTRY: The revised proposal fails to resolve many concerns employers had about the original controversial proposal, such as confidentiality issues, false-positive indicators of discrimination, and the undue burden of completing the reports with pay data. Even though the revised EEO-1 proposal will go through another round of public comments, EEOC has already formally submitted the proposed EEO-1 revisions to the Office of Management and Budget (OMB) for decision. Given EEOC’s momentum and OFCCP’s recently published sex discrimination final rules with a focus on equal pay, employers should prepare their systems to track and report the newly required data and consider conducting a self-audit of their compensation practices and data—with a focus on W-2 data—with outside counsel under the attorney-client privilege to identify and resolve any potential compensation discrimination exposure.