Will Employers Have to Begin Reporting Pay Data to EEOC?

  • Mar 12, 2019
  • EEOC
  • Dennis J. Merley

Employers may need to start gearing up to submit pay and hours worked data to the Equal Employment Opportunity Commission (EEOC) following a significant ruling by a federal court judge in D.C.

The Obama administration proposed adding pay and hours data to the EEO-1 Report, the annual report on job categories by race/ethnicity and gender that all employers of 100 or more employees (and all federal contractors and subcontractors with at least 50 employees) must file on an annual basis.  This was intended to assist the EEOC and the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) in tracking pay disparities within specific occupations and industries.

When the Trump administration took office, the Office of Management and Budget (OMB) issued a stay on the requirement for pay data on the grounds that it was too burdensome for employers.  However, the National Women’s Law Center, among others, filed a lawsuit challenging OMB’s decision.  On March 4, 2019, D.C. District Court Judge Tanya S. Chutkan ruled that the stay was “arbitrary and capricious” and ordered OMB to lift it.

What Does This Mean?

Determining next steps is complicated.  The EEO-1 Reports are supposed to be filed by May 31, leaving covered employers with precious little time to gear up for the collection of the additional pay data.  While it is possible that the OMB could appeal the ruling, an appeal is not at all certain, nor is it clear that the judge’s ruling would be held in abeyance even if an appeal is filed.   Thus, employers might face the prospect of having less than 90 days to collect and submit pay data that they originally had 15 months to assemble.

Meanwhile, the EEOC awaits confirmation of a new Chair.  If that happens, the EEOC’s political make-up might shift enough to result in their decision to discontinue the order seeking the pay data altogether.  It is also possible that the EEOC could extend the deadline for submitting this data in light of the tortured path that the requirement has traveled thus far.

Bottom Line

One thing is certain in all of this – nothing is certain.  We do not know if the data will have to be collected or when it will be due if indeed it is required.  On the other hand, the May 31 deadline is currently in place so the clock may indeed be ticking.

It may be a good idea for covered employers to begin collecting and reviewing their pay data.  Ordinarily, we would suggest seeking assistance in the process from the EEOC’s previously-issued guidance and instructions but alas, they have been removed from the EEOC website.  Let’s hope employers get a little more guidance on all of this soon.  We will be watching for it.