A federal judge in Washington D.C. sent shockwaves through the employment law community late last night by reinstating a revised version of the EEO-1 report, which is now once again set to gather compensation information from employers across the country. The resurrection of the controversial revisions, which had been cast aside by the White House shortly after President Trump took over, will almost certainly be challenged by an appeal and could also lead to further agency maneuverings. While we have not yet seen the final chapter of this controversy written, employers need to prepare for the possibility that their pay practices will soon be placed under a federal microscope like never before.
Rollercoaster History Of Heightened Pay Data Requirements
Historically, employers with 100 or more employees, and federal contractors with 50 or more employees, have been required to submit Employer Information Reports (EEO-1 reports) disclosing the number of employees in their employ by job category, race, sex, and ethnicity on an annual basis. But, over the past few years, there has been an ongoing battle at the federal level to determine whether the EEO-1 would also be used as pay data reporting tool.
The pendulum began to swing in 2016 when the EEOC proposed changes to the EEO-1 report which would require employers to include pay data and the number of hours worked for their workforces. The proposed reporting expansion was intended to identify pay gaps, which the agency could then use to target specific employers and investigate pay discrimination practices. The revised form, revealed in October 2016, was to be submitted by employers by March 31, 2018, using a "workforce snapshot" of any pay period between October 1, 2017 and December 31, 2017.
But the pendulum swung back in employers' favor in August 2017 when the White House scrapped the revised EEO-1 report. The Office of Management and Budget (OMB) announced that it had significant concerns with the revised reporting requirements, among them that "some aspects of the revised collection of information lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues."
This action did not meet the approval of several advocacy organizations, and the National Women's Law Center and the Labor Council for Latin American Advancement sued both the EEOC and the OMB in November 2017 in order to revive the beefed-up EEO-1 report. Last night's...