In response to a Freedom of Information Act (FOIA) request from the Center for Investigative Reporting, the Office of Federal Contract Compliance Programs (OFCCP) is preparing to release the 2016-2020 EEO-1 Type 2 (Consolidated) reports of federal contractors that did not previously object to disclosure. OFCCP’s List of Non-Objectors identifies more than 13,000 entities whose EEO-1 reports OFCCP plans to release in response to the FOIA request.

Quick Hits

• The EEOC recently published an instruction booklet and a set of answers to frequently asked questions to help filers with their reports for the 2022 EEO-1 filing platform.
• Federal contractors provide Unique Entity Identification Numbers and no longer provide DUNS Numbers.
• The deadline to file the 2022 EEO-1 Component 1 report is December 5, 2023.

Here are some key takeaways from the updated guidance documents.

New for the Current Filing Period

DUNS Numbers Are out and UEIs Are in for Federal Contractor Filers

On April 4, 2022, the federal government stopped using the “Data Universal Numbering System” (DUNS) to uniquely identify entities doing business with the federal government (i.e., federal contractors). The “Unique Entity ID” (UEI) created in SAM.gov (www.sam.gov) is now the official identifier for federal contractors.

As a result, eligible federal contractors will no longer provide the “DUNS Numbers” associated with their headquarters and/or establishment(s) in the EEO-1 Component 1 filing system. Instead, employers that are federal contractors must instead provide UEIs. Entities that are registered in sam.gov have already been assigned a UEI and it is viewable there.

Federal contractors are required to respond to a series of Federal Contractor Designations in Section F of the new EEO-1 form. These designations include the following:

□ YES (Single-Establishment Employer is Federal Contractor)

□ YES (Multi-Establishment Employer is Federal Contractor)

□ YES (Headquarters is Federal Contractor)

□ YES (Non-Headquarters Establishment is Federal Contractor)

□ YES (One or More Non-Headquarters Establishments is Federal Contractor)

Interestingly, the instruction booklet provides that the Office of Federal Contract Compliance Programs (OFCCP) considers a company to be a federal contractor “if any of the employer’s establishments [is] a contractor.” (Emphasis in the original.) The position is contrary to the OFCCP’s single entity test to determine when affiliated companies are covered contractors.

Companies that are unsure of their federal contractor status may want to start making the necessary inquiries, as the designation in Section F could put a company at risk of OFCCP scrutiny or being subject to agency responses to Freedom of Information Act requests seeking federal contractor demographic data like the ones we reported earlier.

No More ‘Report Types’

As expected, the EEOC eliminated the different types of non-headquarters establishment reports that were based on the number of employees at the establishment. There is now only one Establishment-Level Report in addition to the headquarters report. This change is a welcome streamlined approach to the filing process.

Updated NAICS Codes

North American Industry Classification System (NAICS) codes are updated by the Office of Management and Budget (OMB) every five years (i.e., in years that end in 2 or 7). For the 2022 EEO-1 Component 1 Report, employers must use the 2022 NAICS codes, as there have been updates. To identify the correct NAICS code for each establishment, an employer can search using keywords for its business using the U.S. Census Bureau NAICS Search Tool at www.census.gov/naics. Employers may want to confirm NAICS codes prior to the opening of the filing site to ensure a seamless process.

Reporting Acquisitions, Spinoffs, and Mergers

Employers that experienced a merger, acquisition, or spinoff since the last EEO-1 Component 1 filing cycle must utilize the “Report Acquisition, Spinoff, or Merger” module in the OFC to report any changes to the EEOC. Even if the merger or acquisition occurred after the fourth quarter of 2022, if the new company meets the filing eligibility requirements, the new company is responsible for submitting 2022 EEO-1 data under a new OFS ID, provided it has access to 2022 EEO-1 Component 1 data for a workforce snapshot period from the fourth quarter of the reporting year for one or more of the companies that merged. Similarly, a spun-off company is responsible for submitting 2022 EEO-1 Component 1 data for itself under its own OFS ID if it meets filing eligibility requirements even if the spinoff occurred after the fourth quarter of 2022. Impacted companies may want to confirm who is responsible for filing EEO-1 reports in order to avoid receipt of failure to file notices from the EEOC.

Self-Identification

The EEO-1 Component 1 data collection currently provides only binary options (i.e., male or female) for reporting employee counts by sex, job category, and race or ethnicity. However, employers may choose—but are not required—to report employee demographic data for non-binary employees, meaning those who do not identify as only male or female, in the “comments” section of the report(s).

The EEOC stated in the guidance that “[i]f the sex reported by an employee during voluntary self-identification differs from the sex recorded in the employee’s employment records, the employer should report the former (i.e., self-identification) and not the latter (i.e., employment records).”

Upcoming Changes for Next Year’s EEO-1 Filing Period

Client Sites

For the current filing period, filers still have the option to report employees at client site locations or at a company establishment. However, beginning with the 2023 EEO-1 Component 1 data collection filing period, employees working at client site locations must be reported at the client site locations. Some employers may want to take this approach for the current filing period in order to be prepared for next year.

Payroll Snapshot Period

Beginning with next year’s filing period, employers will no longer be able to select a fourth quarter snapshot period that avoids EEO-1 jurisdiction by falling under the employee threshold. Instead, an employer that meets the employee threshold at any time during the fourth quarter “may not select a workforce snapshot period where it falls below the threshold in an effort to avoid the filing requirement.” (Emphasis in the original.)

The EEOC website reports that the 2022 EEO-1 Component 1 Data File Upload Specifications are now available here. The EEO-1 Component 1 online Filer Support Message Center will also be available beginning on Tuesday, October 31, 2023, to assist filers with any questions they may have regarding the 2022 collection. The deadline to file the 2022 EEO-1 Component 1 report is Tuesday, December 5, 2023.