As employers scramble to meet the September 30, 2019 deadline to submit pay data for years 2017 and 2018, they can find some relief in knowing that the EEOC recently stated that it does not intend to collect pay data for 2019 or after at this time. According to the EEOC’s Notice of Information Collection, the EEOC will only request approval from the Office of Management and Budget (OMB) to renew its collection of Component 1 data (demographic data), but will not seek approval to continue collection of Component 2 data (pay data and hours worked data).
Since previously requesting approval from the OMB to collect
pay data for 2017 and 2018, the EEOC has created the Office of Enterprise Data
and Analytics, which developed a more accurate way to calculate the burden on
employers when it comes to complying with EEO-1 filing requirements. The EEOC
then concluded that it had previously underestimated the burden on employers in
submitting pay data and hours worked data. Without knowing the true utility of
the pay data collection, the EEOC has opined that the collection’s
effectiveness in fighting pay discrimination is “far outweighed” by the burden
that the collection imposes on employers.
This announcement does not affect the deadline to submit 2017 and 2018 pay data by September 30. It also does not affect employers’ continuing obligation to submit Component 1 demographic information, as the EEOC has made clear it intends to request approval to continue collecting this subset of data collection. The future of EEOC’s pay data collection is uncertain. For now, we know that the EEOC is not currently seeking to continue pay data collection. But, the agency did mention that if it ever decided to pursue data collection in the future, it would do so using the notice and comment rulemaking and public hearing process pursuant to Title VII. We will keep you posted
On September 29, 2016, the Equal Employment Opportunity Commission (EEOC) announced it finalized regulations that require employers to include employee pay data in annual EEO-1 reports. The pay data is required for 2017 reports, which are due March 31, 2018. That is, employers with 100 or more employees are now required to include aggregate W-2 income by gender, race, ethnicity, and job group on their EEO-1 reports. The rule was harshly criticized by employers, who place hope in the Trump administration to undo the regulations.
On January 25, 2017, President Trump designated Victoria Lipnic as the EEOC’s acting chair. Commissioner Lipnic voted against the pay data collection rule and recently indicated this is the type of government action President Trump wants to halt. Changes to the rule would require a vote from the Commission. Prior to the March 31, 2018 deadline for first collection of pay data, President Trump will have the opportunity to nominate two EEOC Commissioners. The nominations require Senate confirmation, so it is uncertain when new EEOC Commissioners will be in place. However, once the EEOC has a Republican majority, it is widely anticipated that the pay data rule will be rolled back, if not eliminated.
Aside from the pay data regulations, employers should note that Commissioner Lipnic announced that the EEOC’s core strategic enforcement plan is not expected to change significantly under the Trump administration. The EEOC’s systemic program will remain a priority as will its focus on workplace harassment charges. The EEOC may reign in broad attacks on the employer community, but it will likely remain an active agency under the Trump administration.
Stay tuned for updates on any changes to the pay data rule and how the EEOC is operating and enforcing rules under the new administration.