EEOC to require 2018 and 2017 comp data by Sept. 30 (UPDATED)

UPDATED Friday night, May 3: The government has appealed.

The Equal Employment Opportunity Commission says that it has decided to require employers to submit 2018 and 2017 compensation data with their EEO-1 Reports, which are due September 30. Here is the statement on the EEOC homepage:

Notice of Immediate Reinstatement of Revised EEO-1: Pay Data Collection for Calendar Years 2017 and 2018

EEO-1 filers should begin preparing to submit Component 2 data for calendar year 2017, in addition to data for calendar year 2018, by September 30, 2019, in light of the court's recent decision in National Women's Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (D.D.C.). The EEOC expects to begin collecting EEO-1 Component 2 data for calendar years 2017 and 2018 in mid-July, 2019, and will notify filers of the precise date the survey will open as soon as it is available.

Filers should continue to use the currently open EEO-1 portal to submit Component 1 data from 2018 by May 31, 2019. 

If you have been following the EEO-1 comp data saga (links to all of our prior posts below), you will remember that the order issued by Judge Tanya Chutkan last week said that the EEOC was required to collect 2018 compensation data by September 30. She also directed the EEOC to require employers to submit comp data for one additional year. The EEOC's choices were to

  • Require 2017 comp data, which would be due on September 30, along with the 2018 data.
  • OR require 2019 comp data, which would be due in 2020, since 2019 is still in progress.

I had predicted that the EEOC would choose 2019, just because that would give the agency and employers more time. After all, the EEOC had told Judge Chutkan that it barely had the capacity to handle the 2018 data this soon.

The EEOC's choice of 2017 means that employers will really have to scramble.

The EEOC portal for submission of EEO-1 compensation data is expected to open in mid-July. Compensation data for 2018 and 2017 must be submitted no later than September 30. "Category 1" EEO-1 data (the usual stuff) must be submitted by the end of this month, May 31.

Will the government appeal Judge Chutkan's decision? We should know very soon. But even if there is an appeal, the government would also have to file a motion to stay (suspend) her order, and the appeals court would have to grant the stay, to keep the order from being in effect while the appeal is pending. UPDATE Friday night, May 3: The government has appealed. A motion to stay would be filed in the appellate court.

"Hope for the best, but prepare for the worst" seems to be the best advice.

By the way, in case you are wondering what the comp data form looks like, here is a sample that the EEOC proposed to use in 2016, before the Office of Management and Budget suspended the requirement in 2017. (Many thanks to the great Cara Crotty, head of our Affirmative Action and OFCCP Compliance practice group, who had the foresight to hang onto this. The form doesn't seem to be available anywhere on the internet. Well, I take that back. It is now. Te-he.)

On Wednesday, the Federal Register published the EEOC's formal notice with the deadline for the 2018 comp data. The formal notice regarding the 2017 data was published this morning.

Here are links to our prior coverage of the 2019 EEO-1 comp data controversy:

EEOC posts notification on EEO-1 comp data

EEO-1 comp data is due Sept. 30 (UPDATED)

Part four of the EEO-1 comp data saga

BREAKING: Deadline of 9/30 proposed for EEO-1 comp data

Chapter Two in the EEO-1 pay survey flap

BREAKING: EEO-1 pay data collection is back on

We aren't going away, and hope you won't either!

Image Credit: From flickr, Creative Commons license, by Claudine.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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