The EEOC portal is now open and employers who had 100 or more employees in 2017 or 2018 have until September 30, 2019 to submit the earnings and hours data required by the new Component 2 part of the EEO-1 form. As we have previously reported here the EEO-1 form was revised to require employers with 100 or more employees to report earnings and hours worked within 12 pay bands, in addition to reporting race, ethnicity, and sex. The collection of this information had been stayed since 2017, but resumed this year pursuant to the 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 Department of Justice has appealed this decision, but the appeal does not stay employers’ filing obligations, and a decision is not expected until well after the September 30 deadline.
Component 2 requires compensation data for both full- and part-time employees. The EEOC began collecting this data in September of 2016, with the goal of identifying and preventing pay discrimination. The collection halted less than a year later, however, when the Office of Management and Budget issued a directive staying the collection of this data on several grounds, including that it was unduly burdensome and invaded privacy. The National Women’s Law Center decision reversed this stay, reopening collection at least until the D.C. Circuit Court of Appeals weighs in. Briefing on the appeal does not conclude until after the September deadline, so employers should expect to complete these filings.
Employers have long objected to the inclusion of pay data reporting on EEO-1 forms, and critics argue that it would not actually expose pay discrimination. And as we have observed before, the EEOC itself appears to recognize this issue, stating that “it does not intend or expect that this data will identify specific similarly situated comparators or that it will establish pay discrimination as a legal matter.” Nonetheless, for now, the data must be submitted.
What to Do
All employers who had more than 100 employees from October to December of 2017 and/or 2018 must file the EEO-1 Component 2 report for the year(s) in which they met that criteria. Employers with multiple establishments must submit a separate forms for the employer in total, the headquarters, and each establishment with more than 50 employees using the EEOC’s detailed excel sheet (a sample of which is available here). Locations with 50 or fewer employees can be reported using that sheet or simply in list format.
Companies who acquired other companies in 2017 or 2018 are responsible for submitting the Component 2 data of their acquired entity for that year, regardless of when the acquisition occurred.
Similarly, where two companies merge to form a new entity, the new entity is tasked with reporting its Component 2 data.
The portal is available at https://eeoccomp2.norc.org. The EEOC says that it is still working to improve its functionality, and expects to add a secure upload function in the coming weeks. In the meantime, it has mailed and emailed login information to employers required to file. Employers who believe they are required to file but did not receive their login information are instructed to contact the EEOC’s help desk at 877-324-6214 or EEOCcompdata@norc.org.
If you need assistance with the new pay data requirement, contact your Akerman Labor & Employment attorney.