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Are Employers Required To Submit Pay Data In The 2018 EEO-1 Report?

March 21, 2019

Businesses with 100 or more employees and federal contractors with 50 or more employees are required to submit an Employer Information Report (“EEO-1 Report”) disclosing the number of employees by job category, race, sex, and ethnicity on an annual basis. In 2016, the EEOC announced it would require employers to include pay data and the number of hours worked for their workforces in their EEO-1 Report, ostensibly to aid in the investigation of pay discrimination practices. Before those disclosures were required, the White House stayed the implementation of the revised reporting requirements.

Now, the pay data reporting mandate has resurfaced. Certain advocacy groups filed a legal challenge to the White House’s decision to stay the new requirements. Recently, a U.S. District Court agreed with those groups, lifted the stay and reinstated the pay data reporting requirement. The Court held that the stay was “arbitrary and capricious” because it “totally lacked the reasoned explanation” required by federal law. The government is expected to appeal the Court’s decision and seek a delay of the implementation of the new requirements while the appeal is pending.

The future of this issue is uncertain. The current form of the EEO-1 Report does not require employers to submit the data on compensation and hours worked, and the EEOC began accepting submissions using that form on March 18, 2019. All submissions are due no later than May 31, 2019. During a hearing on March 19, the Court instructed the EEOC that it has until April 3rd to tell employers if they will need to include pay information in this year’s EEO-1 Report.

We will continue to monitor this issue and keep you updated. If you have any questions concerning EEO-1 Report requirements, please contact one of Honigman’s Labor and Employment attorneys.