Why This Matters

In early March, the U.S. District Court for the District of Columbia revived an Obama-era rule that requires larger companies to report workers’ pay data broken down by gender, race, and ethnicity. Last week, the Court issued an order requiring employers to submit 2018 EEO-1 pay data by September 30, 2019. Just this morning, the EEOC announced it will also collect 2017 data. This means that employers with 100 or more employees (and federal contractors with 50 or more employees) will be required to report their employees’ 2017 and 2018 W-2 compensation information and hours worked by the September deadline. The deadline to submit all other EEO-1 data, such as race and gender information, remains May 31, 2019.

Background

Each year employers with 100 or more employees, and federal contractors with 50 or more employees, are required to file the EEO-1 report, providing the EEOC with data on the number of individuals employed, their distribution by legal entity and location, and their demographic characteristics, including gender, race, and ethnicity. The EEOC is prohibited by federal statute from making public the employment data derived from any of its compliance surveys, meaning the information included in employers’ EEO-1 forms is kept confidential. In September 2016, the EEOC announced that it planned to also start collecting summary employee pay data from certain employers on revised EEO-1 reports. The EEOC’s purpose in collecting this pay data was to see whether pay disparities correlate with employees’ gender, race, and/or ethnicity.

On August 29, 2017, the White House Office of Management and Budget’s (“OMB”) indefinitely stayed the EEOC’s use of the revised EEO-1 form pending review of the form’s new pay data collection portions. The National Women’s Law Center (NWLC) sued the OMB and the EEOC, claiming, in part, that the agencies had exceeded their statutory authority in reviewing and staying the collection of pay data as part of EEO-1 reporting. The OMB argued that a stay was necessary because the notice for the revised EEO-1 was not specific enough in its description of the data reporting required and that the data collection would be overly burdensome for employers. In National Women’s Law Center v. Office of Management and Budget, No. 17-cv-2458 (D.C. Cir. Mar. 4, 2019), the Court found these reasons insufficient. As a result of the Court’s March decision, the stay is no longer in effect. Following that decision, it remained unclear as to whether employers would have to comply with the pay reporting requirements and, if so, by when. The Court’s most recent decision answered that question.