The U.S. Equal Employment Opportunity Commission (EEOC) will require covered employers to file EEO-1 compensation data for both calendar years 2017 and 2018 by September 30, 2019, the agency indicated in a notice sent on May 2, 2019 for publication in the Federal Register. 

Notably unchanged for all employers, the EEO-1 portal is open for the collection of Component-1 data, and employers should be preparing to submit that data in normal course to the EEOC by May 31, 2019. 

Previously, on April 25, 2019, the U.S. District Court for the District of Columbia ordered the EEOC to collect detailed data on employee compensation and hours worked sorted by job category, pay band, race, ethnicity, and gender (the so-called “Component-2” of the EEO-1 form) for calendar year 2018 by September 30, 2019.  At that time, the court gave the agency the option to collect 2019 compensation data in next year’s reporting period in lieu of collecting retrospective 2017 data.  In Thursday’s notice the agency indicates that it has declined that option, and will collect two years of data in the current cycle.

There is, of course, the possibility that the government may appeal and/or seek a stay of the court’s decision.  Absent such action, however, it appears that covered employers may be required to report this compensation data, at least for the periods of time covered by the court’s order.    

In general, private employers with 100 employees or more that are subject to Title VII of the U.S. Civil Rights Act of 1964 are required to file Form EEO-1 (including both traditional “Component-1” data, which reports workforce demographics by job category, race, ethnicity, and gender, and now the new Component-2 data).  Federal contractors that are otherwise required to file Form EEO-1 are only required to file Component-2 data if they have 100 or more employees (covered federal contractors with 50-99 employees are required to file Component-1 only).  Component-2 includes annual W-2 (box 1) compensation sorted by pay band, and annual hours worked.

We will provide further information on the mechanics of filing Component-2 as soon as any becomes available.  Littler's Workplace Policy Institute (WPI) continues to analyze options with respect to the court’s ruling. Those interested in these efforts should contact the author.