The Equal Employment Opportunity Commission has required filing of the EEO-1 Report since 1966. Generally, all private employers with 100 or more employees must file the EEO-1 Report on an annual basis. Additionally, prime and first-tier federal contractors with 50 or more employees and a contract worth at least $50,000 must also file the Report.
The EEOC recently posted the instruction booklet for the 2022 data collection period. This bulletin will cover the most significant changes since the prior version, for the 2021 data collection period, was published.
Changes to report nomenclature
The EEOC has modified the names used to refer to the different types of reports filed by each employer. Here are the old and new names:
Single-Establishment Employer Report
For some reason, a “Type 7” does not exist.
Note that the EEOC has eliminated the different types of non-headquarters establishment reports that were based on the number of employees at the establishment. There is now only one Establishment-Level Report.
Consistent with informal guidance previously provided by the EEOC, remote workers should be included in the establishment to which they report. If they do not report to an establishment, they should be counted in the establishment to which their manager reports. If neither the employee nor the manager reports to an establishment, both individuals should be counted in the headquarters report.
If an employer’s operations are entirely remote and it has no physical worksite, it should report the address where it is legally registered, such as a post office box.
The home address of an employee should never be used.
Employers are not required to report non-binary employees outside the male/female chart. This is purely optional.
However, employers who want to report non-binary employees may do so, outside of the normal data collection grid for males and females. If an employer elects to report non-binary employees, this must be done in the comments section of the applicable establishment report. The comment must be prefaced with the phrase “Additional Non-binary Employee Data” and include the relevant job category and race/ethnicity information, such as “2 non-binary employees in Job Category Service Workers; Race/Ethnicity: Employee 1 Asian (Not Hispanic or Latino) / Employee 2 Hispanic or Latino.” Note that these employees will not be accounted for in the Consolidated Report, which is automatically populated based on the figures in the Headquarters and Establishment-Level Reports.
Unique Entity IDs – NEW FOR FEDERAL CONTRACTORS
Because the U.S. government has ceased using Data Universal Numbering System numbers to identify federal contractors, DUNS numbers have been eliminated from the EEO-1 Report. Contractors must now use the Unique Entity ID (abbreviated as “UEI”) created in www.sam.gov. The instruction booklet does not say how contractors without UEIs should proceed, but presumably this information can be left blank.
Multi-establishment employers must provide the UEI for all applicable establishments. Significantly, the instruction booklet says that the Office of Federal Contract Compliance Programs considers a company to be a federal contractor if any of the employer’s establishments is a contractor: “For example, if an employer (i.e., parent company) has 1,000 non-headquarters establishments and of these establishments only one is a federal contractor, OFCCP considers the entire employer (i.e., parent, headquarters, and all non-headquarters establishments) to be a federal contractor.” This is contrary to the OFCCP’s stated position regarding the single entity test for determining when affiliated entities are covered contractors.
Companies that are based outside of the United States must file an EEO-1 Report if they meet the filing thresholds at establishments that are in the United States. The instruction booklet notes that a foreign-based employer without a headquarters establishment in the United States may use one of its U.S. establishments as the headquarters for purposes of filing. Otherwise, each U.S. establishment should file a separate EEO-1 Report.
Employers are required to include the appropriate North American Industry Classification System code for each establishment. The instruction booklet notes that these codes are updated every five years and that employers should use the most recent codes from 2022.
Mergers, acquisitions, and spinoffs
The EEOC has modified the way that corporate changes are reported. If a merger, acquisition, or spinoff occurred after the reporting period – for example, in 2023 – the new company is generally responsible for reporting the data if the new company meets the filing eligibility requirements and has access to the workforce snapshot data. For example, the instruction booklet states as follows:
If the acquisition was completed after the fourth quarter (i.e., October 1 through December 31) of the reporting year (i.e., 2022) and the acquiring company otherwise meets the filing eligibility requirements and has access to 2022 EEO-1 Component 1 data for a workforce snapshot period from the fourth quarter of the reporting year for the acquired company, the acquiring company is responsible for submitting 2022 EEO-1 Component 1 data for itself and the newly acquired company.
(Emphasis in original.)
Companies that experienced corporate changes during the reporting period should closely review these sections of the instruction booklet to ensure compliance.
Changes for 2023 EEO-1 Component 1 Report
Readers will recall that the EEOC’s term for its “regular” data collection is referred to as “Component 1” data. The short-lived compensation data report was referred to as “Component 2.” Although Component 2 is likely to be revived in the near future, it is not required for the EEO-1 reporting due this year.
However, beginning with the EEO-1 Report for 2023 data (which will be due in 2024), employers will no longer be able to pick and choose a snapshot date that would eliminate the obligation to report. According to the EEOC, “an employer that meets the employee threshold for EEO-1 Component 1 reporting purposes at any time during the fourth quarter . . . of the reporting year, may not select a ‘workforce snapshot period’ from this quarter where it falls below the threshold in an effort to avoid the filing requirement.” (Emphasis in original.)
The EEOC also reports that there will be changes next year in reporting employees who are assigned to work at a client site. Beginning with the reports of 2023 data that must be reported in 2024, employers will be required to report these employees at the client’s physical address. Currently, employers can report such employees at the client’s site, or at the employer establishment to which they are assigned.
The EEOC’s website reports that the specifications for the data file upload process will be posted soon. We encourage to employers to visit the EEOC’s site for future updates. For assistance with filing the EEO-1 Report, please contact a member of Constangy’s Affirmative Action/OFCCP Compliance practice group.