In this podcast, Jay Patton (shareholder, Birmingham) and Kiosha Dickey (counsel, Columbia) provide an update on significant changes to EEO-1 filing obligations. Kiosha and Jay discuss the shorter EEO-1 filing window, which opened on May 20, 2025, and which will close on June 24, 2025. They also discuss the removal of the non-binary reporting option in alignment with Executive Order 14168 and discuss its implications for employers. Kiosha and Jay offer practical tips for reporting remote employees, emphasizing the importance of correctly assigning fully remote staff based on their supervisor's location. They also cover the critical steps for reporting mergers, acquisitions, and spinoffs, highlighting the need for early preparation and accurate data collection.
Transcript
Announcer: Welcome to the Ogletree Deakins podcast, where we provide listeners with brief discussions about important workplace legal issues. Our podcasts are for informational purposes only and should not be construed as legal advice. You can subscribe through your favorite podcast service. Please consider rating this podcast so we can get your feedback and improve our programs. Please enjoy the podcast.
Jay Patton: Good morning. I'm Jay Patton, I'm a
shareholder in the Birmingham, Alabama, Ogletree Deakins office,
and I'm joined by Kiosha Dickey, who is a lawyer in the OFCCP
Group in the Columbia South Carolina office. And we're going to
talk to you this morning about the 2024 EEO-1 filing cycle. As of
today, the landing page for the 2024 EEO-1 filings is not yet open.
It's still referencing the closure of last year's filing
cycle. However, there have been several developments recently
including approval of the 2024 EEO-1 instruction booklet, which
suggests the filing cycle opens soon. Part of the reason we're
coming to you today is that the 2024 EEO-1 instruction booklet sets
a tight filing window with, according to the instruction booklet,
the filing platform to open tomorrow, May 20 and close June
24.
Unlike prior cycles, there is no failure-to-file period anticipated
in the instruction booklet. That was a period of about four weeks,
which allowed filers who had missed the original deadline to
continue filing up until the closure of the platform. For this
year, if things go as planned, the site is scheduled to open
tomorrow and close five weeks later on June 24.
So, we wanted to come to you to tell you a little bit about some of
the highlights for this year's anticipated filing period as we
wait to see the final instructions put out and the filing site
opened. So, Ki one of the things I wanted to ask you about was,
what stands out to you about this year's filing cycle?
Kiosha Dickey: Thanks, Jay. So, for me, the removal of the
non-binary reporting option is one thing that stands out to me. In
prior years, employers, they have the option to voluntarily choose
to report employee demographic data for non-binary employees. So,
those who did not identify as exclusively male or female. It had
the option to report that in the comment section of the applicable
establishment report. The EEOC also advised that employers who
chose this option should not assign such employees to the male or
female categories or any other categories. With the removal of this
option for this year's reporting cycle, in line with Executive
Order 14168. Which is defending women from gender ideology,
extremism, and restoring biological truth to the federal
government.
So, the reporting by sex section of the instruction booklet is now
reduced to one sentence. The EEO-1 component one data collection
provides only binary options, male or female, for reporting
employees counts by sex, job category, and race or ethnicity. This
should not be a surprise given the current administration's
stance on binary sex.
So, this change actually presents quite a conundrum for employers.
On one hand, we have the current administration statement in
Executive Order 14168. And then on the other hand, we have gender
identity protections that currently exist under Title VII of the
Civil Rights Act. So, in terms of how to handle the situation,
it's best for you to consult with your legal counsel on the
best approach to handling the non-binary reporting option that is
no longer in place for 2024. How about you, Jay?
Jay Patton: Thanks, Ki. One thing that stands out to me, is
despite the rescission of Executive Order 11246 by President Trump
on second day of the administration, the EEO-1 rules and guidance
for reporting federal contractors remains the same as it did last
year. And it's interesting because this guidance, in the
instruction booklet is based seemingly exclusively on Executive
Order 11246, which has been rescinded. Many people expected that
the requirements for federal contractors would disappear or
substantially change based on the Executive Order 14173, which
rescinded 11246, but that change has not occurred.
And so basically, federal contractors, even though a lot of other
obligations, including preparation of written APs, have completely
changed since President Trump's rescission of 11246. The EEO-1
requirements stay the same. So, practically what this means is
there were a group of federal contractors who were required to file
EEO-1 reports if they had a single federal contract of 50,000 or
more and had between 50 and 99 employees during the snapshot
period. The conventional wisdom was that this type reporting would
end based on the rescission of 11246. However, it remains in place.
So, federal contractors with workforces under a hundred employees
will still have to file EEO-1 reports.
The general requirement for both federal contractors and private
employers is, once they reach the 100-employee threshold, they all
must file. So, the big exception is for smaller federal
contractors, or the big expectation was that that filing
requirement might end, but it did not. It remains in the workbook
or in the instruction booklet. Now, it's possible EEOC could
issue additional guidance modifying this, but that does not appear
to be the case. The instruction booklet includes a sample form,
which is basically the mirror image of last year's form. And
under that form, federal contractors with 50 to 99 employees were
required to report.
Another thing that's interesting about the EEO-1s, in light of
the rescission of 11246, is the reporting requirement, including
the use of an UEI is still the same as last year. This impacts both
the small federal contractors at 50 to 99 group, plus the large
federal contractors with 100 or more. This requires each federal
contractor to note in a specific place on the form whether they are
a federal contractor at the establishment level, that being the
entire organization, whether they're a federal contractor at
the headquarters level, or whether they're federal contractors
at individual establishment levels. And these can overlap as well.
This requires time and attention to properly filling out the EEO-1
report. And unlike, maybe some believed, that this requirement
would go away with the rescission of 11246, it remains in place.
So, these requirements for basically the federal contractor
reporting requirements remain the same as last year, despite
significant changes in this area of the law through the rescission
of Executive Order 11246.
So, we've talked about a couple big issues for both of us. So,
now I think it makes sense, since we're heading into filing
season, and just to be clear again, at this point the filing
platform is not open. No information has been released by EEOC as
to when the platform will start, but we expect it'll be soon.
So, focusing on that imminent opening, we wanted to kind of shift
and talk about a couple of nuts-and-bolts type issues. And so, Ki
do you want to lead us off and talk a little bit about filing
structure and some other stuff?
Kiosha Dickey: Sure. Thanks, Jay. So, if a company only has one
physical location, it must file a single establishment report. So,
all employees who report to and work at that one physical location
are in that one single establishment report. If companies have two
or more locations, they must file multi-establishment reports,
which consist of a headquarters report and establishment report.
And those reports are the numbers that are auto-populated into a
consolidated report. Every separate physical location should have
its own establishment report.
And if there are multiple FEINs, every FEIN plus physical location
combination should have its own establishment report. But you do
not want to file as a single establishment employer and include all
of your employees who work at multiple addresses in that one
report. Every physical location should have its own report. And
again, if you're dealing with multiple FEINs, you'll want
to look at things in terms of FEIN plus physical location
combination. FEIN plus physical location combination should have
its own establishment report. I think, Jay, you want to talk about
maybe some issues revolving around remote employees?
Jay Patton: Sure, Ki, thank you. And thanks for making that
important point about multi-establishment employers. That seems to
be a common misperception. So, thanks for digging into that.
Another question that comes up a lot is how do we report remote
employees? In our changing workforce, there are more and more
remote employees, and so it's an issue that's coming up
with increased frequency. The EEO-1 instruction book for 2024
mirrors the instructions for prior years. And in that, it basically
says if an employee is fully remote, and it makes distinctions. So,
for instance, a hybrid employee who works in an office part of the
time is considered assigned to that office. They are not a remote
employee. The only remote employees we have to worry about with
this assignment are what are called fully remote. They do not
regularly report to an office, and there's no real expectation
they will.
And in that case, what the instruction booklet tells us to do is to
look to the physical establishment assignment of that fully remote
employee's supervisor. And provided that supervisor is assigned
to a physical location, the fully remote employee will follow the
supervisor and be reported at that physical location. The guidance
goes on to state that if the fully remote employee's supervisor
is also fully remote, they should both be rolled to the
headquarters establishment. This could mean that many, many remote
employees rolled to headquarters.
Some filers choose to go up more than one level to look to see if
the next supervisory rung physical establishment can be located and
employees assigned there. That's not exactly in the instruction
booklet, but that's not an uncommon practice. But again, when
we think about the changing workforce we have, look carefully at
the instructions for assigning fully remote employees, because this
will be important to make sure you get them in the right places.
And another trend that we've seen is as the number of physical
establishments that employers have decreases, we can end up with
more and more people fully remote being ultimately assigned to the
headquarters location. So, that's another thing to keep an eye
out for.
Another thing to think about, especially early in the filing cycle
this year, is do you have any mergers or acquisitions or spin-offs
that you need to account for? In the last two years, there's
been a specific module in the filing platform, which allows for
fairly easy reporting of mergers, acquisitions, and spin-offs. You
also need to remember...and you need to get those done early
because they can take a little more time and require more gathering
of data, including, well, not a real deep dive on the merger,
acquisition, or spin-off details, some level of detail. So,
it's best to look at those early. And if you have them, get the
information gathered, log in the platform, see if you have
everything you need so you can report it. Also, remember that
reporting on your side, let's say you acquired someone,
there's also a requirement to go to the company that was
acquired or report the acquisition on their side. And that'll
help you avoid follow-ups down the road.
So, to wrap this up, continue to look at the EEO-1 filing site, and
see if there are updates posted there. As we said, the instruction
booklet contemplates the platform opening tomorrow, May
20th, and closing on June 24. We're not sure that
will happen since nothing's been posted yet, and no emails have
been sent. And often, the EEOC sends a kickoff email with login
information and the OFS ID number for your company, as well as a
PIN number, which can allow people to link to your account. We
haven't seen that yet, but it all could begin tomorrow in a
flash. The website could be updated saying the platform's
opened, closes on June 24, and emails can be sent tomorrow.
We're not sure if that'll happen or not, but whatever
happens, we do expect, or at least I do, expect five weeks to be
the amount of time you have to file. And it's going to be
quick, and we're going to need to move. Be on the lookout in
your email as well, figure out who the contact person is, and be on
the lookout for an email potentially telling you the platform is
open, this is a deadline, and here's your company information.
So, Ki, do you have anything else to add before we wrap it up?
Kiosha Dickey: No, I think you hit all the main points right there. And again, like Jay said, just to reiterate, just keep an eye out on the EEOC's website for any further developments.
Jay Patton: So, from both Ki and me, happy 2024 EEO-1 filing. Take care. Bye-bye.
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