Category Archives for Compliance

U.S. Chamber of Commerce Update on EEO-1 Reporting

United States Chamber of Commerce Update on EEO-1 Reporting 

This information from the U.S. Chamber of Commerce was passed along by Clyde Jacob of the CUE Labor Lawyers Advisory Committee. Clyde serves on the Chamber’s Labor Relations Committee and occasionally passes along items that may be of interest to CUE members.  In this case, he has shared an update from the Chamber on revisions to EEO-1 form reporting. While not directly on target to typical CUE topics, you may find the information useful.

Today, the Office of Information and Regulatory Affairs officially posted its approval of the EEOC’s revisions to the EEO-1 form as meeting the strict requirements of the Paperwork Reduction Act.  Pursuant to these finalized changes, employers with 100 or more employees will be required to submit data regarding employees’ W-2 earnings and hours worked.

Effective Date

For 2016, your EEO-1 reports remain unchanged (and are due today if they haven’t already been filed).  No report is required in the 2017 calendar year.  Then, beginning in 2018, employers will report by March of each year on their workforce “snapshot” taken sometime between October 1 and December 31 of the previous year.  Thus, under the new form approved today, your first report will be due at the end of March, 2018.

What Employers Have to Report

For each of the 10 EEO-1 job categories, employers will be required to report the number of employees by ethnicity, race, and sex that fall within the following pay bands:

Employers will also be required to report employees’ hours worked.  For exempt employees, employers can report their actual hours worked if they happen to track time in this manner, or can report a default 40 hours (for full time employees) or 20 hours (for part time employees).  Again, the new form is located here.

How Will the Data be Used

EEOC claims that it will use the data in three different ways.  First, the Commission claims that EEOC staff will use this data along with “analytics software to help focus the early stages of its investigations.” Second, EEOC claims that it will use the data to “develop studies of the private sector workforce.”  Finally, EEOC will share the data with researchers performing academic studies.  As noted in our comments, we believe EEOC’s planned use of this data does nothing to assist the Commission in its statutory mission to enforce federal anti-discrimination laws and should have been fatal to the proposal.

Confidentiality

The EEOC claims that the data companies supply via these new EEO-1 reports will be kept confidential.  However, we remain concerned that there are various ways in which this information can get out and be used by various groups – e.g., the press, unions, activist shareholders – to portray employer compensation policies in a false light.  In fact, just one week ago, we alerted OIRA to a recent GAO report which cites a 1300% increase in cyber data breaches of federal agencies between 2006 and 2015.  We asked OIRA to instruct EEOC to follow the GAO Report’s recommendations, but EEOC’s final changes still reflect an indifferent and careless attitude regarding confidentiality.

Next Steps

Ultimately, we are very disappointed with OIRA’s approval of EEOC’s revisions.  While we are confident that EEOC failed to meet its obligations under the Paperwork Reduction Act, that law does not provide a private cause of action.  But with the reporting not scheduled to begin until 2018, there is time for us to explore all options, including but not limited to, examining whether other statutes can provide us with a litigation vehicle, as well as a renewed emphasis on the appropriations process.  We will be sure to keep you apprised as our strategy going forward begins to unfold.
In the meantime, we continue to deliver the message in public that this is a bad policy which should never have been approved.  See Washington Post and Reuters.