On July 14, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued a revised version of its proposal to expand pay data collection from federal contractors and other employers with more than 100 workers. The revised proposal pushes back the date of the first required employer report to allow for the use of W-2 wage and salary reports.
The EEOC initially published its proposed rule in late January. The proposed rule expands the information certain employers must report to the federal government on an EEO-1 report. The EEOC’s proposal would add data on pay ranges and hours worked to the information currently collected.
The EEOC considered and adopted specific suggestions made by commenters during the initial 60-day comment period that ended earlier this year. For example, the EEOC moved the due date for the EEO-1 survey from September 30, 2017 to March 31, 2018, to simplify employer reporting by allowing employers to use existing W-2 pay reports, which are calculated based on a calendar year. In addition, the EEOC agreed to give employers the choice of reporting either a 40-hour week for full-time exempt and 20-hour week for part-time exempt workers, or in the alternative, providing an annual report for such employees. This change is in response to employer concerns for the non-standard weekly hours for this category of workers. The updated rule comes with a fresh, 30-day comment period that runs until August 15, 2016.
The changes set forth in the proposed rule would require federal contractors and other employers with more than 100 workers to provide more pay data. The pay data is in addition to data already collected from EEO-1 reports that provide the federal government with workforce profiles that are sorted by race, ethnicity and gender. The EEOC insists that this data will help identify possible pay discrimination and assist employers in promoting equal pay in their workplaces.
The EEOC has still not fully addressed concerns of federal contractors over confidentiality of the data collected in the EEO-1 reports. Government contractors are concerned that the collected salary information will not be kept confidential, and will be used by competitors to obtain an unfair advantage. The EEOC is prohibited by Section 709(e) of Title VII of the Civil Rights Act of 1964 from making public the employment data derived from its EEO-1 compliance surveys. However, courts have ruled that the prohibition against disclosure in Title VII does not apply to federal government prime contractors or their first tiered subcontractors. While the EEOC did not accept the call for Congress to amend Title VII to expressly extend the statute’s confidentiality provisions to other state and federal agencies that may receive data disclosed in the EEO-1 form, the agency agreed to take extensive measures to protect the confidentiality and integrity of EEO-1 data.
Written comments in response to the revised rule may be submitted through http://www.regulations.gov until August 15, 2016. Alternatively, comments may also be mailed to Joseph B. Nye, Policy Analyst, Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW, Washington, D.C. 20503, or emailed to firstname.lastname@example.org.