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After a Long Delay, Employers Face Short Deadline to Submit Pay Data to EEOC

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More than three years ago, I wrote a post on this blog warning my readers that the EEOC was about to introduce a new EEO-1 form that would require employers to provide salary information by sex and race/ethnicity and provide the number of employees in each of twelve salary ranges in each of the EEO-1 categories.

When President Trump got elected, however, and the Office of Management and Budget (“OMB”) stayed the EEOC’s requirements, many employers simply forgot about these new requirements. Few paid much attention when the National Women’s Law Center sued OMB. On April 29, 2018, however, a federal judge in Washington, D.C. entered a declaratory judgment and ordered the government to complete collection of employers’ salary data for 2017 and 2018, no later than September 30, 2019. (The Department of Justice has appealed the decision, but many believe that the district court’s decision will be affirmed).

The new requirement applies to most employers with more than 100 employees and some began uploading their pay data in mid-July when the online filing system — which is the only way to submit data — went on line for the first time. At this point, it is not clear how well the system is working. The most recent update (posted yesterday) stated that “the secure file upload function and validation process is expected to be available by mid-August-2019,” calling into question the security of the data that has already been submitted. While this lawyer is not exactly sure what this means, one would think that it would be preferable to wait until mid-August until these processes are implemented.

However, even if the on-line system works flawlessly and securely as thousands of employers try to download their data to meet the fast approaching September 30, 2019 deadline, employers should be aware that this new additional component of the EEO-1 report is considerably more complex than the original component. In other words, while it may be good to see if the appeals court changes the ruling, don’t wait until September 29. For example, in addition to reporting salary information, employers will need to know the total number of hours worked by their non-exempt employees because that will be included in the report. Employers will also need to make decisions as to which snapshot period they use for each year.

Finally, once employers have collected their data, if they have not done so already, it may be a good time to actually look at it. Are women or minorities in certain EEO-1 categories earning less than white males in the same categories? If so, can those discrepancies be explained by looking at such variables as education, experience, hours worked, job classification, or performance? If pay disparities cannot be explained, employers may want to address those disparities before someone else (the EEOC perhaps?) reaches the same conclusion after looking at the data.

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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.