Federal District Judge Reinstates Expanded EEO-1 Reporting Requirements, Leaving Employers Uncertain

March 20, 2019

Since 1996, the United States Equal Employment Opportunity Commission (“EEOC”) has required employers with 100 or more employees file an annual Employer Information Report EEO-1 (“EEO-1”) identifying the number of individuals employed by job category, sex, race, and ethnicity.  In 2018, the deadline for the EEO-1 form changed from September 30th of each year to March 31st of each year.

Due to the government shutdown in the winter of 2018-2019, covered employers now have until May 31, 2019, to file completed EEO-1 forms with the EEOC.  However, as the result of a March 4, 2019, court decision, covered employers may soon be required to collect and report wage information along with their EEO-1 forms.

In its March 4th decision in National Women’s Law Center v. OMB,[1] the U.S. District Court for the District of Columbia vacated the Office of Management and Budget’s (“OMB”) September 15, 2017, stay of the EEOC’s 2016 expanded EEO-1 reporting of wage information.  The EEOC’s 2016 revised reporting required covered employers to report wage data for twelve pay bands for each of the ten EEO-1 job categories—in addition to the regular reporting of the number of employees by category, sex, race, and ethnicity.

In September of 2016, the OMB approved the new reporting requirement.  However, in August of 2017, the OMB, under the Trump Administration, changed course and stayed the expanded reporting requirement.  The OMB issued the stay as a result of complaints from business owners concerned that the expanded information would be too burdensome. The stay became effective in September of 2017, when the EEOC issued a notice in the Federal Register.

In the National Woman’s Law Center decision, the court found that the OMB failed to adhere to its own regulations, which require a showing that the relevant circumstances have changed, or that the burden estimate provided by the EEOC at the time of the initial submission was materially in error.  Additionally, the court found that the OMB failed to show good cause when it decided to change course on the expanded EEO-1 reporting requirements.

As a result, the court vacated the OMB’s September 2017 stay and ordered the expanded EEO-1 reporting to go into effect immediately.  When the opinion was first released, covered employers were left wondering what information they would need to report by the May 31, 2019, EEO-1 deadline.  In a recent statement, the EEOC announced that the wage data would not be required at this time and that it would provide further updates regarding the reporting of the wage information “as soon as possible.”

Therefore, covered employers should prepare to file the usual EEO-1 forms by the May 31, 2019 deadline, without including the new wage information.  However, covered employers should be vigilant, as the EEOC may soon issue new guidance regarding the reporting of the wage information.  HR Legalist will provide further updates regarding the changing EEO-1 requirements as more information becomes available.  In the meantime, employers seeking guidance or assistance with the EEO-1 reporting process, or other labor and employment issues, should consult counsel with experience in this area.

[1] No. 17-CV-2458 (D.D.C. March 4, 2019)