On July 13, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued a revised proposal to expand data collection through its Employer Information Report (“EEO-1”). Through EEO-1 reports, the EEOC and the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) have been able to identify possible discriminatory practices and conduct pay discrimination investigations through the race, gender, ethnicity, sex, and job category pay data collected from employers across the country.

The proposed revisions, submitted to the Federal Register for a 30-day second round of public comments, seeks to include reporting of pay ranges and hours worked to the items included on the EEO-1.

In response to the first round of comments, the EEOC has edited the proposal to modify the date on which an EEO-1 is due. While the 2016 filing deadline remains September 30 of this year, the 2017 report deadline will be on March 31, 2018. The filing deadline for a particular reporting year will subsequently be March 31 of the following year. This provides employers more time to handle the changes.

Also, the “workforce snapshot” period, referring to the pay period the total number of employees during an EEO-1 reporting year are counted, is being changed to occur during the fourth quarter in order to prevent unreported changes after the period and better align the period with the federal schedule for W-2 preparation. This change will not affect the 2016 EEO-1.

The EEOC also responded to many of the comments made. For example, there were negative comments that W-2 income should not be the source used for varying reasons, including that it reflects employee choice such as participation in overtime; objections to collecting hours worked due to the costs associated with creating a system to report such data; and the contention that the statistical data would cause the EEOC to make unfounded inferences of pay discrimination. The EEOC asserted that differences between discrimination and employee preference are often ambiguous and that supplemental income included on W-2s may be linked to pay discrimination; as such, the comprehensiveness of W-2s allows the EEOC to consider sources of income that may otherwise be excluded.

The final public comment period is open until August 15, 2016.

Marcia DePaula focuses her practice in the areas of labor and employment law and higher education. She represents hospitals, manufacturers, banks and corporate clients in complex litigation. Ms. DePaula defends employers before administrative agencies, including the Pennsylvania Human Relations Commission and the Equal Employment Opportunity Commission, and in state and federal courts for claims involving employment discrimination, harassment, Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).
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