Update on EEO-1 comp data reporting

Blogging last month about the court orders directing the EEOC to gather compensation information in EEO-1 reports, and the government’s subsequent appeal, I had speculated that the government might ask for the comp reporting requirement to be suspended until the appeals court had a chance to rule.

*Quick recap* The Equal Employment Opportunity Commission under President Obama instituted a requirement in 2016 that certain employers report employees’ compensation in their annual EEO-1 reports. After President Trump was elected, the Office of Management and Budget “stayed” (suspended) the compensation reporting requirement, and it never took effect.

Meanwhile, the National Women’s Law Center and another public interest group filed suit against the OMB and the EEOC, alleging that the stay was unlawful.

In March 2019, a federal judge in the District of Columbia agreed with the plaintiffs and issued two orders, essentially directing the government to reinstate the compensation reporting requirement. The EEOC and the judge agreed on September 30, 2019, as the deadline for employers to submit their compensation data to the EEOC.

Meanwhile, the OMB and the EEOC appealed to the U.S. Court of Appeals for the District of Columbia Circuit. I had speculated that the government might try to get the appeals court to “stay” (suspend) the orders pending resolution of the appeal. *End of “quick” recap.*

But so far, no such luck. The appeals court had a preliminary filing deadline of June 7 (this past Friday). Although the government filed a number of pleadings on Friday, there was no motion for a stay pending appeal. Without a stay, the September 30 comp-reporting deadline will remain in effect.

By September 30, private sector employers with 100 or more employees will be required to submit “Category 2” compensation data for calendar years 2017 and 2018. (Employers with fewer than 100 employees who are not federal contractors do not have to file EEO-1 Reports at all. Employers with 50-99 employees who are federal contractors are required only to submit the “Category 1” — “the usual” — information that was due on May 31.)

The EEOC is continuing to warn employers that the compensation reporting requirement is still in effect. This is straight from the EEOC’s home page (emphasis in original):

On May 3, 2019, the Department of Justice filed a Notice of Appeal in National Women’s Law CenterPlease note: The filing of this Notice of Appeal does not stay the district court orders or alter EEO-1 filers’ obligations to submit Component 2 [compensation] data. EEO-1 filers should begin preparing to submit Component 2 data as described above.

The EEOC says that it will have a “fully operational” help desk available starting June 17, and will be ready to start receiving compensation information from employers in mid-July.

Here is an excellent post from 2017 by Cara Crotty, chair of our Affirmative Action/OFCCP Compliance Practice Group, on what employers need to do to get ready.

We’ll continue to monitor the filings in the case and will be back with anything newsworthy.


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