Obama-Era EEO-1 Reporting Requirement Reinstated by Federal Court

March 15, 2019

The U.S. District Court for the District of Columbia reinstated the Equal Employment Opportunity Commission’s annual pay data collection requirement that was put in place at the end of the Obama administration but suspended by the Trump administration in 2017 before it could be implemented.

The reinstated pay data report will require employers with more than 100 employees to report the total number of employees and total number of hours worked for 12 different pay bands (pay ranges) for 10 different EEO-1 job categories and 14 different gender and race/ethnicity groups.

In addition, under the report: 

  • Pay bands are determined by an employee’s W-2 earnings data accumulated over the four previous quarters ending on December 31.
  • For salaried employees who are exempt under the Fair Labor Standards Act, employers can either assume 40 hours per week for full-time exempt employees and 20 hours per week for part-time exempt employees, multiplied by the number of weeks the individuals were employed during the EEO–1 reporting year; or provide actual hours worked by exempt employees if the employer maintains accurate records of the information.

Coincidentally, soon after the D.C. judge issued his reinstatement order, the EEOC’s Chief Data Officer Chris Haffer told Law360 that the agency is on the verge of “unlock[ing] the vault” on the data it has collected over the years, making it more accessible online to the public.

  • Haffer stressed that the data would continue to only be available in the aggregate, without being identified by employee or employer. “You could potentially look at sexual harassment charges by state, by gender or by a charging party’s race and ethnicity, [but the data would be] privacy protected,” he said.

  • The interview received a mixed reaction from the management bar, according to Law360.  Some were concerned that, even redacted, publicly available data could lead to increased lawsuits in certain industries, for which the data would be identifiable.  On the other hand, an employer could use the data as a tool to benchmark how it is doing in that industry.

Outlook: The EEOC is still evaluating its options regarding the court’s decision, with the first reports due May 31, 2019 for 2018 data.  We anticipate the EEOC will issue a statement regarding the stay with further direction regarding the implementation date in the near future.