EEO-1 Forms: Out with the New and In with the Old?

Thursday, 31 August 2017

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Update: On August 29, 2017, the Office of Information and Regulatory Affairs (OIRA) indefinitely suspended the new EEO-1 Form. OIRA is part of the Office of Management and Budget (OMB). Employers will still have to file an EEO-1, but it will be the old form. In the discussion below, the requirements of component 1 remain in effect. The elements of component 2 are the ones that have been indefinitely suspended. In its memorandum to the Equal Opportunity Commission (EEOC), OIRA identified three general reasons for the suspension: The information to be collected doesn’t appear to have any practical utility. The collection is burdensome. Privacy and confidentiality issues aren’t adequately addressed.

Original post made on June 12, 2017:

As many of you know, the Equal Employment Opportunity Commission made significant changes to the Employer Information Report EEO-1 (often called “EEO-1 Report”) last year which are currently in effect. The most significant change imposes new obligations on employers to report pay data. The chart below sets out the differences between the new form and the old form.

But are these changes here to stay?

In a recent presentation to a group of defense lawyers (including yours truly), acting chair of the EEOC, Victoria Lipnic, indicated that the new EEO-1 form may undergo yet another round of changes. Lipnic pulled no punches in her presentation by directly criticizing the new form and stating that she did not believe the new form was a useful tool in gathering important data. She explained that much of the pay data required in the new EEO-1 form is available through other, less burdensome measures (think www.GlassDoor.com). However, Lipnic does not currently have the votes to rescind the new form or to make any other changes. This will most likely change once new commissioners are appointed by President Trump to the EEOC, which will happen later this year.

Indeed, the Office of Management and Budget (OMB) is currently reviewing a petition to reject the new changes. The United States Chamber of Commerce wrote a detailed letter to OMB asking for the review. On May 23, 2017, the U.S. House of Representatives Subcommittee on Workforce Protections held a hearing to discuss, among other issues, the new EEO-1 form. It appears the new form is the focus of attack from multiple fronts.

Keep an eye out for more on this topic as we continue to monitor the situation.

Comparison of Old and New EEO-1 Forms

	New Form (Will be first used for 2017 and will be due on March 30, 2018)	Old Form (Last used for 2016 and should already be filed)
Component 1 data: Who must report data about employee ethnicity, race, and sex by job category?	Private-sector employers with more than 99 employees. Prime Government contractors or first-tier subcontractors with more than 49 employees and a contract of $50,000 or more. Certain financial institutions.	Private-sector employer with more than 99 employees. Prime Government contractors or first-tier subcontractors with more than 49 employees and a contract of $50,000 or more. Certain financial institutions.
Component 2 data: Who must report data about amount of pay (W-2) and hours worked of non-exempt employees (not exempt employees)?	Private-sector employers with more than 99 employees. Government contractors with more than 99 employees.	No one.
From what pay period must the data “snapshot” come?	Data comes from one pay period during October, November, or December of previous year.	Data comes from one pay period during July, August, or September of current year.
Who is exempt from reporting?	Government contractors excepted by 41 C.F.R. § 60-1.5. State governments. Local governments. Public school systems. Institutions of higher learning. American Indian tribes. Tax-exempt private membership clubs.	Government contractors excepted by 41 C.F.R. § 60-1.5. State governments. Local governments. Public school systems. Institutions of higher learning. American Indian tribes. Tax-exempt private membership clubs.
Is EEO-1 Government contractor data protected from access by competitors through FOIA requests?	OFCCP policy will be to inquire of Government contractors whether their data should be released to competitors. If data not under OFCCP jurisdiction, OFCCP will refer FOIA request to EEOC.	No clear policy pronouncement by OFCCP.

Definitions of abbreviations used in table:

OFCCP = Office of Federal Contract Compliance Programs (part of U.S. Department of Labor)
EEOC = Equal Employment Opportunity Commission
FOIA = Freedom of Information Act
C.F.R. = Code of Federal Regulations

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