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In the wake of the recent reinstatement of the controversial EEO-1 pay data reporting requirements, the U.S. Equal Employment Opportunity Commission (EEOC) announced on April 4, 2019, that all covered employers have until September 30, 2019 to comply. However, this date remains somewhat uncertain.

Historically, private employers with 100 or more employees (and federal contractors with 50 or more employees and contracts of $50,000 or more) have been required to report race, ethnicity, and sex of their workforce data to the EEOC on an EEO-1 form. The EEOC, in turn, uses that information to investigate potential discriminatory employment practices.

In September 2016, the EEOC approved a revised EEO-1 form that would require private employers and federal contractors with 100 or more employees to provide the EEOC with additional data regarding workforce pay and hours worked broken down by job categories, race, ethnicity and sex. As discussed in a previous advisory, this new wage and hour data was intended to assist the EEOC in identifying potential discriminatory compensation practices. The original compliance deadline to submit the newly requested data was March 2018.

In August 2017, however, the Office of Management and Budget (OMB), which reviews all significant regulatory action before it takes effect, notified the EEOC that the newly adopted EEO-1 pay and hour data requirements should be stayed. We previously discussed the concerns and issues raised by OMB regarding the requested data, its appropriateness and security risks.

Several civil rights groups immediately sued to enforce the revised EEO-1 form and on March 4, 2019, a federal court found the stay to be unlawful and ordered the revised EEO-1 form take effect immediately. The court also ordered the EEOC to clarify whether employers will have to comply with the newly reinstated requirements by the upcoming EEO-1 reporting deadline of May 31, 2019.

On April 4, 2019, the EEOC announced that covered employers will have until September 30, 2019 to comply with the new pay and hour data reporting requirements. However, several pro-business groups expressed concern with the decision and timing requirements and are seeking an 18-month extension to comply, which may delay actual implementation. Actual implementation may also be delayed if an appeal is sought.

In sum, covered employers should file their EEO-1 data by May 31, 2019 in accordance with normal procedures. Additionally, although the EEOC has stated that it will be issuing additional instruction regarding the pay data component, covered employers also should begin gathering and organizing the data needed to comply with the September 30, 2019 deadline, should the deadline remain in place.