EEO-1 Filers with 100 or More Employees Must Submit Pay Data for 2017 and 2018 by September 30, 2019

Businesses required to file an EEO-1 must submit the usual Component 1 data to the U.S. Equal Employment Opportunity Commission (“EEOC”) by May 31, 2019. However, whether businesses with 100 or more employees must submit Component 2 pay data has been up in the air since 2016, when the EEOC first proposed revisions to the yearly report to require employers to report pay data in order to detect discriminatory pay practices. Although the Office of Management and Budget (“OMB”) initially approved the EEO-1 collection data (under the Obama Administration), in August 2017 (under the Trump Administration), the OMB stayed the Component 2 data collection. The OMB’s stay prohibited the EEOC from collecting the data, and thus employers previously had no legal obligation to provide the data.

What’s New?

In March 2019, a District of Columbia judge held that the OMB’s stay of the revised EEO-1 was improper, and the EEOC is entitled to gather such information. Accordingly, on April 29, 2019, the EEOC released the following statement:

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…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…

While the U.S. Department of Justice appealed the D.C. Court’s decision, such appeal does not stay the Order. According, “Filers should continue to use the currently open EEO-1 portal to submit Component 1 data from 2018 by May 31, 2019”.

Who must file an EEO-1?

Generally, private employers with more than 100 employees, or a smaller company that is an affiliate of an enterprise with over 100 employees. Additionally, federal contractors/first-tier subcontractors subject to Executive Order 11246 (government contract over $10,000) with 50 or more employees, and a prime contract or first-tier subcontract of $50,000 or more. However, the Component 2 data must only be reported by private employers (including federal contractors and subcontractors) with 100 or more employees.

What is Component 1 and Component 2 data?

Component 1 data consists of demographic data of employees by job category, sex, ethnicity and race; this is unchanged. Component 2 data consists of hours worked data and W-2, Box 1 wages, each among twelve (12) pay bands for each job category by sex, ethnicity and race:

As for reporting “hours worked”, non-exempt employees are straightforward – employers will report actual hours worked during the calendar year. As for exempt employees, if employees track their time, employers may use actual hours. Otherwise, for exempt employees, employers can chose to use a 40 hour week for full-time employees, and 20 hour week for part-time employees, multiplied by the number of weeks actually worked in the calendar year.

Now what?

Employers who must file the EEO-1 should be sure to file the Component 1 data by May 31. Those who also need to file Component 2 data should start gathering the required hours and wages information now (for 2017 and 2018), and begin to prepare to submit the data due in September.

If you have any questions, please contact Corie Anderson at 952-921-4615 or cjanderson@seatonlaw.com, or any of the Peters, Revnew, Kappenman & Anderson, P.A. attorneys.