Employment & Labor Insider

There is a new chapter in the continuing story of whether employers will have to report compensation data this year on their EEO-1 reports.

Chapter One is here, and Chapter Two is here. Chapter Three is here.

On Tuesday (April 16), federal District Court Judge Tanya Chutkan held a hearing in the District of Columbia, which included representatives of the plaintiffs and the government -- specifically, the Office of Management and Budget, and the Equal Employment Opportunity Commission. The EEOC's Chief Data Officer also attended, as did the Deputy Administrator of the OMB.

There is a 103-page transcript of the hearing, but it is not available to the general public, and may not be until July.

(Yes, we law bloggers are only "the general public." Sad!)

However, an article in Law360 says that Judge Chutkan was not pleased with the fact that the EEOC removed instructions from its website on how to submit comp data. When she asked why that had been done, the Chief Data Officer responded that "we're not sure what the data collection process would look like." He also expressed concern that the EEOC would be inundated with calls from employers asking for guidance. (Ya think?)

According to Bloomberg Law, the Chief Data Officer also said that NORC, the University of Chicago affiliate that would have to receive and compile the data in 2019 because the EEOC can't do it, has said it will refuse to go forward with the project if the comp data deadline is earlier than September 30.

As I reported in "Chapter Three," the EEOC has proposed a deadline of September 30 for employers to disclose their compensation data for 2018. The Law360 article said that the plaintiffs objected to this deadline, noting that the compensation data reporting requirement will expire on that date. The plaintiffs expressed concern that the EEOC would simply "run out the clock" without ever requiring employers to submit the data.

According to the plaintiffs, the deadline should be May 31 -- barely one month from now -- which would be incredibly difficult for employers. 

However, Judge Chutkan said she would assume that the OMB stay (issued in 2017) would "toll," or delay, the expiration date of the compensation data reporting requirement, meaning that the requirement would not in fact expire on September 30. If the government were to take a different position, she said, "that would be pretty bold given what's happened today."

The Bloomberg Law article said that even the plaintiffs were somewhat agreeable to the September 30 deadline, as long as the EEOC demonstrated its good faith by providing instructions and regular updates to employers between now and September 30.

The hearing ended with no ruling on what the deadline will actually be, so for now, we know it's May 31 for the "Category 1" data (the usual stuff), and we are continuing to assume it's September 30 for the "Category 2" compensation data.

Judge Chutkan said that she would issue a ruling on the appropriate deadline as soon as possible.

Don't you dare go away!

(NOTE: The original version of this post misspelled the judge's last name. It has now been corrected. Many thanks to the reader who alerted me to my error.)