United States: Deadline Looms For Expanded EEO-1 Filing

Last Updated: August 12 2019
Article by R. Daniel Beale and Sarah E.W. Trevino

For US employers with 100 or more employees, extensive new information relating to their prior EEO-1 filings must be submitted by September 30, 2019. Specifically, in addition to categorizing employees by race/ethnicity, gender and job type, employers are now required to assemble and submit, with respect to each subcategory, aggregated employee data regarding compensation and annualized hours worked. Assembling the required data may be much more complicated than many employers are expecting, so it is important to begin planning now.

What is the EEO-1?

For many years, the US Equal Employment Opportunity Commission (EEOC) has required employers with 100+ employees to complete and file an EEO-1 form annually. The EEO-1 was essentially a relatively simple demographic snapshot of the employer's workforce, capturing the number of employees in each of several job categories by gender and by race/ethnicity. The Office of Federal Contract Compliance Programs (OFCCP) also has long required the EEO-1 for federal government contractors with at least 50 employees.

What is different this year?

Late in the Obama administration, the EEOC and OFCCP issued rules requiring employers to start providing additional information regarding compensation groupings and hours worked for each of the existing job, gender and race categories. Before these rules were fully implemented, however, the Trump administration's Office of Management and Budget (OMB) halted the rules, asserting that the revisions were overly burdensome and created privacy concerns. Private organizations, in turn, challenged the OMB action, and in March 2019, a federal court ordered the EEOC to move forward with collecting the new compensation and hours data (collectively referred to as "Component 2" data). Following further court hearings, the EEOC established September 30, 2019, as the new deadline for submission of the data.

Who needs to worry about this?

Only employers with 100 or more employees need to submit the new Component 2 data. (Most federal contractors with 50 to 99 employees still must submit the Component 1 data annually, but need not submit the Component 2 data.) 

The 100-employee benchmark is not based on a particular establishment, but on the employer's workforce as a whole. All full-time and part-time employees must be counted for purposes of determining whether the employer meets the 100-employee threshold. The 100-employee benchmark is determined by the number of employees as of the years 2017 and 2018, not the current number of employee.

What new data needs to be submitted by September 30?

Each covered employer must submit Component 2 data for both 2017 and 2018. There are two aspects of the new Component 2 data: compensation levels and aggregate hours worked.

First, employers must take the data from Component 1 (the number of employees, broken down by job category, race and gender) and further sort the employees into the twelve different salary bands (ranging from "$19,239 and under" to "$208,000 and over"). An employee's salary band is determined by the compensation reported in Box 1 of the employee's W-2 form for the relevant calendar year. (Note that, if an employee has an annualized salary of $100,000, but begins employment on October 1 of the relevant year, the Box 1 data will put the employee in the salary band that includes $25,000 rather than the salary band that includes $100,000.)

Second, employers are required to report the aggregate number of hours worked per job category. For example, if in the first section an employer reports a total of nine "administrative support workers" who identify as "White (Not Hispanic or Latino)" and who are further identified as female, the employer will next calculate the total number of hours worked by those nine employees in the applicable calendar year. For FLSA-nonexempt employees, actual hours should be used; for FLSA-exempt employees, proxy hours (40 hours per week for full time, 20 hours per week for part time) may be used instead.

Similar to the Component 1 EEO-1 requirements, employers will select one "snapshot" pay period between October 1 and December 31 for purposes of determining which employees will be included in the Component 2 data.

How do we submit information?

Component 2 reporting is via an electronic, online application. The EEOC requires that EEO-1 reports be submitted via the Component 2 EEO-1 Online Filing System, or as an electronically transmitted data file. Employers who wish to submit this data manually may now do so via the online form through the EEO-1 Survey Portal located at https://eeoccomp2.norc.org. Larger employers who wish to upload the data via a specifically formatted CSV file may do so beginning in mid-August. Most employers should already have received login information by mail from the EEOC.

Will submitted data be available to competitors or the public?

The data will not be directly accessible to the public. It is possible, however, for Component 2 data to be released in response to a Freedom of Information Act (FOIA) request. The EEOC has taken the position that, unless a lawsuit has been filed on an investigated charge, it will withhold EEO-1 data based on FOIA exemptions for information prohibited from disclosure by federal law and for confidential trade secrets, commercial or financial information.

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Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

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