No sooner did employers submit their 2016 EEO-1 filings, than a
new EEO-1 form requiring more detailed information was approved by
Generally, federal contractors and private employers with 100 or
more employees are required to complete the well-established EEO-1
report each year. Employers currently provide employment data that
identifies by job category demographic information about race,
gender and ethnicity. The old EEO-1 form can be viewed here. The revised EEO-1 form now requires that
employers also provide the aggregate of employees' pay, as
reflected in Box 1 of W-2 forms, by job category and broken down by
race, gender, and ethnicity. You can view a copy of the new form here.
The EEOC announced its original proposal on January 29, 2016. A
public hearing was conducted on March 16, 2016, and public comment
was available until April 1, 2016. Hundreds of public written
comments were submitted expressing concerns with the revised form.
Predominately, employers expressed concern with the burden imposed
by the new reporting requirements, the potential for unwarranted
inferences of discrimination based on newly compiled employment
data, and the efficacy of the new data as it relates to protecting
against discrimination. Ultimately, the EEOC was not persuaded and
chose to move forward with the changes to the EEO-1 form. However,
the timeline for filing future EEO-1 forms has now been extended
until March 31, so employers can utilize prior year W-2s to provide
the pay data.
The EEOC contends that this data will help to evaluate pay
discrimination and potentially strengthen enforcement. Further, the
aggregated data will help employers evaluate their own pay
practices to determine potential differential treatment amongst
protected classes. The EEOC aims to put all this data to work
through new software and tools that will further aid
Along with the new pay data by job category, other changes will
be reflected in the revised EEO-1 form. First, the "workforce
snapshot" will also change to any pay period between October 1
and December 31 of the reporting year. This means employers are
free to choose any pay period during this time to calculate full
and part-time employees for EEO-1 purposes. Additionally, hours
worked must be collected so that the EEOC can account for part-time
and partial year employment when they analyze EEO-1 pay data.
Employers must now report the actual number of hours worked for
non-exempt employees;, and for exempt employees, employers must
report 20 hours per week for each part-time employee and 40 hours
per week for each full time employee, or the actual number of hours
worked by exempt employees.
The result is an EEO-1 form that morphed from two to eight pages
in length and now contains 10 job categories and 12 pay bands for
employers to navigate. Consequently, employers are forewarned that
although 2016 filings were just completed, the time to prepare for
next year is already upon you. Employers should (1) ensure they
have the ability to adequately track these new categories of
required data, (2) conduct a privileged review of the legal risks
of their current pay practices to identify any potentially improper
practices, (3) place existing employee positions within the 10 job
categories and 12 pay bands as defined in revised EEO-1 form, and
(4) determine how to report exempt workers' hours.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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