On July 13, 2016, the Equal Employment Opportunity Commission (EEOC) published a revised version of a proposed rule to broaden the scope of data collected in the EEO-1 report. The revised proposal contains some key changes such as changing the due dates to coordinate reporting of demographic and additional data beginning in March 2018. However, the revised proposal does not change the EEOC’s insistence on collecting data on pay and hours worked. And it does not fully respond to employers’ concerns regarding theburden and usefulness of collecting the data. The comment period for the revised proposal closes August 15, 2016.
The EEOC’s efforts arise from the government’s larger efforts to enforce pay equity through a series of reporting, enforcement and voluntary initiatives. This reporting initiative follows a now-abandoned effort by the Office of Federal Contract Compliance Programs (OFCCP) to obtain pay data in an equal pay report. EEOC has joined with OFCCP to collect and share pay data to strengthen its reporting and enforcement efforts.
On January 29, 2016, the EEOC asked the Office of Management and Budget to approve a change to the EEO-1 form. The EEOC proposed that beginning in September 2017, EEO-1 filers with 100 or more employees would be required to submit EEO-1 data to include aggregated W-2 pay and hours worked data. The Agency scheduled hearings and invited various stakeholders testified regarding the proposal. Based on the comments and the testimony, EEOC has issued its 30 day notice revising the previous EEO-1 notice.
- Under the new proposal, the EEOC will require reporting on an employer’s established pay ranges for positions and hours worked. In response to the comments received regarding the initial proposal, the revised proposal proposes moving the due date for filing the required report from September 30, 2017 to March 31, 2018. This change will allow employers to use employee’s W-2 earnings for reporting.
- The EEOC attempted to clarify the “hours worked” component of the EEO-1 report to indicate that the employer could interpret the term using the definition in the Fair Labor Standards Act, or FLSA. The FLSA defines hours worked as “all time an employee must be on duty, or at any other prescribed place of work, from the beginning of the principle activity of the workday to the end of the last principle activity of the workday.”
- Employers required to file the EEO-1 report may report 40 hours per full time exempt employee and 20 hours per part-time exempt employee. The EEOC further explained the term in reference to the pending “hours worked” reporting obligations for covered federal contractors under pay transparency provisions of the Fair Pay and Safe Workplaces Executive Order.
- The EEOC revised its burden estimate. Instead of the 6.6 hours estimated in the initial notice, the EEOC now estimates that the enhanced report would take employers 15.2 hours to complete. This estimate remains significantly below the estimates most employers noted in their comments.
- The EEOC explained that it intends to use pay data for early analysis of discriminatory complaints. Investigators will examine the data for pay disparities and perform statistical analyses, yet to be determined in order to investigate whether compensation discrimination appears likely. The EEOC has further stated that it will compare periodic reports on pay disparities by gender and race based on the data.
Because of the revisions to the proposal, a new 30 day notice and comment period commenced with the release of the new revised proposal in the federal register. Therefore, the comment period for the revised proposal ends on August 15, 2016.
To discuss the EEOC’s latest EEO-1 report proposal, or any of California’s employment related laws, feel free to contact leading California employment lawyers at Kingsley & Kingsley. Call toll-free at (888) 500-8469 or click here to contact us via email.
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