Just when it appeared settled that EEO-1 Pay Data reporting was no longer on the table, advocacy groups have filed a lawsuit to reinstate the rule.

 In November, the National Women’s Law Center (NWLC) and the Labor Council for Latin American Advancement filed suit against the Office of Management and Budget (OMB), the Equal Employment Opportunity Commission, and other government entities to reestablish the requirement that certain employers submit aggregate pay data and hours worked with their annual EEO-1 Report, in addition to the traditional demographic data already submitted.

 While intended as a way to address discriminatory pay practices, the means of achieving the result was controversial. Critics argue against the aggregate nature of the data as units of analyses, which would not take into account factors that influence pay. Additionally, the burden on employers, who often do not have crossover between payroll systems and demographic data, would be significant.

As expected, in August, the OMB issued a stay on the pay data collection aspects of the new EEO-1 Report, citing data submission specifications that were not open to public comment during the review process and a resulting change in the burden estimate for employers.

In the NWLC complaint filed challenging the stay, the plaintiffs argue, among other things, that the OMB did not have authority to issue the stay and that the OMB’s Memorandum failed to explain how the pay data collection requirement “lacked practical utility, [was] unnecessarily burdensome, and failed to adequately address privacy and confidentiality issues . . . nor why any purported problems . . . outweigh the benefits identified by the EEOC and OMB in approving the revised EEO-1.”

Regardless, of what the court decides, we anticipate that the 2017 EEO-1 Reports due date of March 31, 2018, will not change and only will collect traditional demographic information.