Yesterday, March 4th 2019, the United States District Court for the District of Columbia vacated the Office of Management and Budget’s stay on the EEOC’s revised EEO-1 Pay Data Collection form, and ruled that the previously approved form be implemented immediately.
Essentially, this means that federal contractors will be required to collect employee W-2 pay data and hours worked (Component 2 of the revised EEO-1 form) at the individual level, in addition to the standard EEO-1 form fields, such as EEO-1 category, race/ethnicity, and gender data. This is effective immediately, meaning federal contractors are legally required to report this information in the upcoming EEO-1 filing.
The EEO-1 filing period for this current cycle was originally scheduled to occur between Jan 1st, 2019 to March 31st, 2019. However, with the recent government shutdown, the deadline has been pushed to May 31st. The EEO-1 filing website is still currently closed but is slated to open on March 18th, 2019. It is assumed that that current EEO-1 system will now need to be updated in order to receive the newly required hours worked and pay data, which may result in the current filing period being pushed back . . . again.
To add further uncertainty, the OMB or the EEOC could potentially appeal the removal of the stay, at which point we could revert to the filing requirements in place March 3rd, 2019. In that case, federal contractors would simply file Component 1 of the revised form, without wage and hours data. The EEOC currently has only two of the five Commissioner seats filled, and without a Chair Person (Commissioner Lipnic is currently acting Chair), their ability to act on the appeal is also uncertain.
With so much change and uncertainty, we recommend that federal contractors not take any action to start collecting pay and hours worked data as of now. However, Contractors do need to be aware that it could be a very real requirement in the medium and long-term, specifically later this year. In addition, employers should at least inform decision-makers of the potential that this information could be required this year.
Hold tight for further developments on this topic. They will be communicated as more details emerge.