United States: An EEO-1 Report FAQ: Meeting The Deadline And Avoiding An OFCCP April Fools' Day

The EEO-1 form allows the Equal Employment Opportunity Commission to collect data from all employers with more than 100 employees, as well as government contractors and subcontractors, on the race, ethnicity, and gender of their workforces, organized by occupational category. Compiling, reporting, and filing EEO-1 reports can be a confusing and lengthy process. The 2017 EEO-1 report must be filed by March 31, 2018. Here are some answers to contractors' frequently asked questions on filing their EEO-1 reports as this year's deadline approaches.

How can an employer properly report its employees who "regularly report" to client sites?

The Equal Employment Opportunity Commission's (EEOC) guidance stating that employees who regularly report to client locations must be reported using the client's address caused a stir in the employer community and was one of the major changes to the EEO-1 report for this year's filing cycle. This change would have required employers to track employees who were remotely assigned and to develop new establishment reports for such employees. Employers were concerned about this additional reporting requirement both from an administrative perspective and due to its potential impact on future Office of Federal Contract Compliance Programs (OFCCP) audits, as an employer report could potentially trigger an OFCCP audit at a client location. The buzz in the employer community apparently was felt at the EEOC, which in late February of 2018 amended its list of frequently asked questions (FAQs) to add a question and answer about this issue. The EEOC's response to the FAQ states that there "may be some confusion" over this issue and tells employers that they "will not be considered 'non-compliant'" if they continue to report client-reporting employees at their "non-client site employer address." The EEOC concludes its response to the FAQ by noting that is it still considering how to address this issue. So, for now, this requirement is off the table for this filing year.

What are some of the most common errors employers make when filing EEO-1 reports?

One of the most common errors reported by the EEOC is employers not reporting that they have been through a merger or acquisition. Another common employer error is reporting all employees from all company locations on a single headquarters report. Not only do these errors violate the filing instructions, they could also cause major headaches for government contractors that are selected for OFCCP compliance evaluations because the contractor's employee population on the EEO-1 report would not correlate with the actual employee population of the establishment selected for the compliance evaluation.

Another common error is failing to report spin-offs to the EEOC. A spin-off occurs when an existing business splits off or sells a portion of its existing business so that the new, resulting business operates independently of the original business. Spin-offs, mergers, and acquisitions must be reported to the EEO-1 Joint Reporting Committee.

Another common mistake is failing to include employees who did not self-identify their race, ethnicity, or gender on the EEO-1 report. The EEOC provides specific guidance for how employers are required to handle such situations, including a set process for visual identification. However, many employers omit such employees entirely.

How are EEO-1 reports used?

According to guidance issued by the EEOC, the EEOC and the OFCCP use EEO-1 reports to collect demographic workforce data from employers. Both agencies use the data to analyze employment patterns and to support civil enforcement actions. The OFCCP uses EEO-1 filings to schedule compliance evaluations of covered federal contractors and subcontractors, which means that employers may want to be especially mindful when preparing their EEO-1 reports and certifying that they are—or are not—federal contractors or first-tier subcontractors. EEO-1 reports are also subject to Freedom of Information Act (FOIA) requests, and while OFCCP will release EEO-1 reports in response to such requests, the EEOC does not. Recently, OFCCP was sued by a public advocacy group over OFCCP's refusal to grant a FOIA request seeking the identity of those filing FOIA requests, demonstrating the importance of EEO-1 information.

What are some common myths about EEO-1 reports?

The most common myth is that employers do not need to report employees who do not self-identify and that it is okay to leave such employees off a company's EEO-1 report. In fact, the EEO-1 filing requires a certifying official to certify under the penalty of perjury that all employees have been properly reported. Instead of omitting such employees, employers should follow the EEOC's procedures for visual identification and then list these employees. This is becoming more challenging as employees may not identify as male or female and these are the only options on the EEO-1 reports.

Another myth is that employers can roll several physical locations into a single EEO-1 establishment report because the employees are part of a functional unit. The EEO-1 reports are closely tied to physical locations and absent specific exceptions (such as the exception for employees working from home and the client-based location exception discussed above), information on employees from different physical locations cannot be combined into a single establishment report.

Some employers mistakenly believe that EEO-1 reports do not require careful attention when categorizing employees. This is not true, and employers may want to look carefully at the proper EEO-1 categories for their employees and work to be consistent in regards to how they report across their workforces.

A version of this article first appeared on SHRM Online.

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