EEOC to Discontinue Future Pay Data Collection
By Lehr Middlebrooks Vreeland & Thompson, P.C.
September 27, 2019
This article was prepared by JW Furman, EEO Consultant Investigator, Mediator and Arbitrator for the law firm of Lehr Middlebrooks Vreeland & Thompson, P.C. Prior to working with the firm, Ms. Furman was a Mediator and Investigator for 17 years with the Birmingham District Office of the U.S. Equal Employment Opportunity Commission (EEOC). Ms. Furman has also served as an Arbitrator and Hearing Officer in labor and employment matters. Ms. Furman can be reached at 205.323.9275.
The Equal Employment Opportunity Commission has announced that it is not seeking to renew Component 2 of the EEO-1. Although that does not negate employers' obligations to submit 2017 and 2018 pay data by September 30, it does suggest that the information will not be required for subsequent years. Maybe. At least not in the same format. Maybe.
As we have discussed here previously, under President Obama, the EEOC requested and received permission from the Office of Management and Budget (OMB) to expand its EEO-1 report to include employee hours worked and pay data (Component 2). After the administration change, OMB stayed indefinitely its prior approval of collection of Component 2 information. A federal court then overruled OMB and reinstated it. The EEOC, who apparently had never developed a plan to collect or analyze the new information it requested, scrambled to find a way to comply. In the end, a third party was contracted to receive and organize Component 2 data for 2017 and 2018.
Administrative agencies are required to request approval from OMB when they collect certain information from the public and renew those requests periodically (usually every 3 years). Approval for the EEO-1 report expires September 30, 2019, and, on September 12, EEOC filed its notice to renew Component 1 (the original EEO-1 report of race and gender) data collection only. Its notice published in The Federal Register of that date concludes that the "unproven utility" of collecting Component 2 pay data "is far outweighed by the burden imposed on employers. Therefore, the EEOC is not seeking to renew Component 2 of the EEO-1." Despite finding that collection of both Components 1 and 2 data presents a higher burden on employers than previously thought, the EEOC still intends to continue requiring the Component 1 report. It went on to say, "Collection of Component 1 data ... has already proven its utility to the EEOC's enforcement of employment discrimination laws ..." This notice does not mean that EEOC will never collect hours worked and pay data. Right now, it does not intend to collect the same information in the same format as required in this year's report. It can, in the future, request permission to gather the same or similar information in the same or some other format.
The EEOC indicated that it will consider the value of the pay information it receives this year before deciding on future requests. The Office of Federal Contract Compliance Programs (OFCCP), which enforces discrimination laws regarding federal contractors, receives pay data through scheduled audits in lieu of employer-provided reports. Given the attention equal pay has received in the press, political circles, and within EEOC recently, I believe that some form of pay data collection will be considered again. The type of information required and the method for obtaining it, I believe, will depend upon the political environment at the time.
Other stagnant EEOC initiatives include its new enforcement guidance on workplace harassment. EEOC's task force on workplace harassment submitted its findings to the agency in 2016. This triggered a complete update of its very old enforcement guidance. The new guidance was published for public comment in 2017 and submitted to OMB for final approval in early 2018. EEOC Chair Dhillon recently advised the House Education and Labor Subcommittee on Civil Rights and Human Services that she still did not have a sense of when OMB will finish reviewing the guidance.
The EEOC has been fairly quiet on the policy and rulemaking front since the administration change in Washington, probably due to the many vacancies (Commissioners and General Counsel) since the change in administrations. As of this summer, it now has a quorum (3 of 5 Commissioners seated) and a new General Counsel. These vacancies could explain how Component 2 became such a mess this year and why EEOC did not request it be revoked or stayed back when OMB issued the stay. With more leadership now in place, we may start to see EEOC's direction become more evident.