It’s anyone’s guess. Just last week the parties to the EEO-1 Component 2 lawsuit agreed that collection can stop. The trial court’s order last Monday February 10th stated that as of February 6, 2020, 88.8% of eligible filers have submitted EEO-1 Component 2 data for calendar year 2017, and 89.6% of eligible filers have submitted such data for calendar year 2018.
The court then stated that all parties agreed that this collection level meets the federal government’s obligations to complete EEO-1 Component 2 data collection for calendar years 2017 and 2018. Therefore Component 2 is complete. Collection for the EEO 1 Component 2 data ended officially last Friday. There is no immediate plan to resurrect Component 2 anytime in the future.
But what is going on with the EEO-1 demographic reporting? The authority for collection of data expired and has to be renewed. EEOC sent up a renewal package to the Office of Management and Budget (OMB) to review and approve publishing the renewal for a 30-day comment period. Once the comment period is over, EEOC must review all comments. It will take time. The earliest likely for any EEO-1 demographic reporting to be in effect would be in April. Therefore, it’s anyone’s guess.
The EEOC has has published the following on its website:
The 2019 EEO-1 survey is not yet opened. The EEOC is currently in the process of seeking approval under the Paperwork Reduction Act (PRA) to collect the EEO-1 survey for 2019, 2020, and 2021. The EEOC is seeking to collect Component 1 of the survey and to discontinue the collection of Component 2 pay data. See, EEO-1 60-Day PRA Notice. The opening of the collection will be announced by posting a notice on the EEOC home page and sending a notification letter to eligible EEO-1 filers. When the survey opens, the EEOC will provide online resources to assist filers with their submissions and the EEOC's helpdesk will be available to respond to filer inquiries and to provide additional filing assistance (including, for example, guidance on processing mergers and acquisitions and other corporate changes).
Therefore, any requests to the EEOC for mergers and acquisitions, spinoffs, and other technical changes needed will not be considered or processed until the EEO-1 Demographic (Component 1) tool is open.
The same rules will apply once the tool is open. Required employers will have to select a date in 4th quarter 2019 to submit the data. If the organization is a federal contractor, per the Veteran Employment and Training Service, the use of an employee snapshot of 12/31/19 for the EEO-1 demographic reporting can also be used for the VETS 4212 reporting due September 30th. VETS 4212 reporting tool generally does not open until August time frame.
It has been asked whether the pay reporting requirement (Component 2) will be required again. The EEOC has stated that it will not collect future pay data without first analyzing the current collection to determine its true value and representation of pay issues. As noted, data based on Box 1 W-2 would not represent pay differentials except on the basis of personal choice, e.g. contribution to retirement plans or health savings accounts, if applicable, or share of pre-tax health care premiums among other things. The EEOC, if down the road decides to reinitiate the pay collection, will take a more measured approach as to the data collected, analyzed, and securitized in their systems as well as burden on employers.
Finally, although the EEOC has been barred from releasing any EEO-1 data collected, federal employers worry that an end around would occur through either OFCCP FOIA request or by court discovery orders in a lawsuit. The lawsuit filed by the EEOC and OMB is still pending on appeal. They argue, simply and in short, that the trial judge overstepped her authority by requiring the collection of data instead of returning it to the OMB for further review. If the EEOC and OMB win the appeal, the data will never be subject to release.