U.S. District Judge Tanya Chutkan ordered the EEOC to have employers submit their 2018 pay data by September 30, 2019. She then ordered the EEOC to collect a second year of pay data, either collecting employers' 2017 data or collecting 2019 data in 2020.  The EEOC has until April 29 to put a statement on its website informing employers of the decision and requirement and to decide by May 3^rd whether it will collect 2017 data or 2019 data.  

The lawsuit began when The National Women's Law Center and the Labor Council for Latin American Advancement challenged OMB’s decision to rescind the Obama Era change to the EEO-1 reporting to add pay reporting as unfair and poorly reasoned in November 2017.  In March 2019 the judge granted summary judgement to the two groups requiring the EEO-1 pay tool be reinstated.  The judge then held a hearing in early April to determine what data should be collected.  The decision today is the final order as to the data requirements.

Business groups, including the U.S. Chamber of Commerce and Direct Employers, argued that they were taken by surprise by the reinstatement, saying member employers have not kept data in a form  transmissible to the EEOC and would need at least 18 months to complete the survey.  The Direct Employers survey had shown that less than 25% of survey participants could possibly complete the reporting requirement by September 30^th.

The EEOC argued that the utility of the data is suspect, and that it could not, with its current contractor, collect the data and maintain the security necessary as required by the National Academy of Science.  It will have to subcontract the work out to NORC at the University of Chicago at a cost of $3 million. 

The EEO-1 Pay reporting requires employers to take Box 1 of the W-2 data and code it to 12 different band groups and report it by EEO-1 Category.  This requirement only applies to employers with 100 or more employees.   The bands are as follows:

Employers will also have to report on FLSA hours worked. For non-exempt workers, employers will report actual hours worked (including overtime hours). Employers for exempt employees will have the option to use: 1) proxy hours of 40 hours per week for full-time exempt employees and 20 hours per week for part-time exempt employees; or 2) provide actual hours if the employer tracks hours worked for exempt employees. The U.S. Chamber brief has shown that payroll providers may not be able to program the hours collection requirement in the short-time frame.

Further, there is an issue that this data may now be discoverable either by litigation or through the Office of Federal Contractor Compliance Programs (OFCCP) in the U.S. Department of Labor through a Freedom of Information Act (FOIA) request, which is not allowed under law for the EEOC to provide.

ASE will continue to monitor the situation and whether there will be any appeals or filing of lawsuits by employer groups.