As we most recently reported here and here, as of September 30, 2019, employers with 100 or more employees (and federal contractors with 50 or more employees) were required to report to the federal government pay data for 2017 and 2018 for their workforce (known as “Component 2” data), broken down by race/ethnicity, sex, and job category. However, consistent with its current practice regarding submission of Component 1 data – which consists of a listing of employees’ job category, sex, race, and ethnicity – the EEOC has agreed to continue collecting Component 2 data for a six-week period after the September 30, 2019 deadline, ending on November 11, 2019.
The pay data collection process has been the subject of ongoing litigation in the U.S. District Court for the District of Columbia. In April 2019, it issued an order approving the September 30, 2019 deadline and requiring the EEOC to file status reports every 21 days explaining the steps the agency was taking to collect the data. The order did not specify when the agency could stop the filing of these status reports. The EEOC’s most recent status report was due on October 18, but the agency did not file a report. Rather, prior to that date, on October 8, 2019, the agency filed a motion requesting that the court issue an order “confirming that the Component 2 data collection is complete.” Based on the EEOC’s own analysis, the Component 2 data collection should be deemed complete once 72.7% of Component 2 reports have been filed, and as of October 8, 2019, 75.9% of eligible filers had submitted the Component 2 data. Further, the EEOC highlighted the importance of its request by citing the potentially significant costs associated with continuing to collect Component 2 data, which the agency estimates would be approximately $1.5 million through November 11, 2019 and $150,000 per week beyond that. Therefore, the EEOC asked the court to grant it permission to close the collection portal on November 11, 2019, and asked the court to issue its ruling before November 1, 2019, so the agency could make necessary arrangements with the contractor that is assisting it with the data collection.
On October 22, 2019, the plaintiffs filed a response opposing the EEOC’s request to deem the pay data collection complete. The plaintiffs argue that collection is not complete because the EEOC’s assertion that only 72.7% of employers must submit Component 2 pay data is incorrect, and instead, “the order’s requirement of completion will only be satisfied when the filing rate reaches 98.25% — the mean percentage of EEO-1 reports actually submitted over the past four years.” Further, the plaintiffs voice concern that the EEOC has not provided any information regarding the steps it is taking to maximize the reporting percentages and encourage late submissions during this six-week period of continued collection. Finally, the plaintiffs take issue with the EEOC’s decision to stop filing status reports and argue that the reports remain crucial for informing the court and the plaintiffs about the status of the collection efforts.
Now, the parties must wait for the judge to rule on these motions. In addition, it is worth noting that the EEOC appealed the court’s initial order, and a ruling on that appeal is still outstanding. As always, we will continue to provide updates about EEO-1 reporting requirements as they evolve, but for now, employers can still submit their Component 2 data to the EEOC until November 11, 2019 if they have not done so already.