Seyfarth Synopsis: Pursuant to ongoing litigation, the EEOC was required to submit a proposed timeline for the collection of pay and hours data in connection with the Revised EEO-1. On April 3, the EEOC submitted its proposed timeline that, while raising numerous concerns, confirmed to the District Court that it could implement and collect pay and hours information by September 30, 2019. The Plaintiffs in the case will respond to the EEOC's proposed timeline and the amicus filings by April 8, with a ruling from the District Court expected to follow shortly thereafter. Amicus filings from the employer community provided information supportive of allowing employers at least 18 months of lead time before submitting pay and hours data under the Revised EEO-1.
What Is The EEOC's Proposed Timeline For Collecting Pay Data?
As we previously reported, after lifting the 2017 stay on the collection of pay and hours data, the U.S. District Court for the District of Columbia set a schedule to allow the EEOC and the Plaintiffs to submit proposed timelines for complying with the Court's ruling.
The EEOC's proposed timeline outlined the difficulties the agency has experienced with the regular EEO-1 reporting requirement noting that in the past the agency had not "sufficiently tested its data collection system in a rush to open data collection on time." The EEOC further stated that in order to make the "necessary updates, enhancements, security testing, load and performance testing, data validations and verifications, and application testing to securely collect and store" the "highly sensitive Component 2 data" it would need nine months to conduct the work internally.
The agency provided that, if required, it could complete the data collection by September 30, 2019 by engaging with a third-party at a cost of $3 million dollars. However, it warned that data collected within the "expedited timeline" may not have "sufficient integrity to support data comparisons or other analyses because of the limited quality control and quality assurance measures." Under the proposed timeline, it appears the EEOC is suggesting that the data collection period for employers could begin as early as July 15 and could close as early as September 30, 2019.
Seyfarth filed a Motion to provide the Court with critical information regarding the obstacles and burdens applicable to employers who would bear the ultimate weight of the Court's Opinion. The Motion was filed on behalf twelve business, human resource, and industry associations, including: the Chamber of Commerce of the United States, HR Policy Association, Associated Builders and Contractors, Associated General Contractors of America, Center for Workplace Compliance, Institute for Workplace Equality, National Association of Manufacturers, National Federation of Independent Business, National Retail Federation, Restaurant Law Center, Retail Litigation Center, Inc. and the Society for Human Resource Management.
Amici expressed their significant concerns over any retroactive data collection requirements given the substantial difficulties in making the system related changes that would be required under the Revised EEO-1. Amici urged the Court to consider at least an 18 month timeframe for implementation of the pay data collection requirements and further urged the Court to suspend Component 2 reporting until the EEOC is able to adequately preserve the confidentiality of the information being submitted.
What Does This Mean for Employers?
Plaintiffs will respond to the EEOC's proposed timeline for the collection of pay and hours data by April 8. We expect the District Court to rule on the final timeline shortly thereafter.
In terms of next steps, employers should begin making preparations as to how they would collect, aggregate and report on pay data. While the timing of such reporting obligations are not yet clear, it is important to begin the discussions regarding how the information would be captured and reported. Whether your organization prepares reports internally or sends data to a vendor for processing, this is the time to begin connecting with the necessary resources to understand how best to extract the demographic, hours worked, and payroll information that would be necessary to submit a Revised EEO-1 Report.
Also, keep in mind that the May 31 deadline for submitting Component 1 demographic information to the EEOC remains in effect at this time.
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