The collection of EEO-1 “Component 2” data (total compensation and hours worked) is still on-track with the current deadline of September 30, 2019. The EEOC is still under court order to collect data for the 2017 and 2018 calendar years. The “update,” such as it is, concerns whether and to what extent there will be a Component 2 reporting requirement for calendar year 2019 and beyond. If the EEOC has its way, the answer to that question is, “No.”
The EEO-1 report is an “information collection” controlled by the Paperwork Reduction Act (PRA). The PRA requires federal agencies to get large-scale information collections approved by the White House Office of Management and Budget (OMB). Without OMB approval, you cannot be legally required to respond to the information collection. Typically, OMB approves information collections for a period of three years, after which agencies must resubmit the information collection to OMB for approval for continued use. OMB assigns a “control number” to each information collection and requires agencies to display a “valid” OMB control number and expiration date. The current control number for the EEO-1 reports (both Component 1 and Component 2) is set to expire on September 30, 2019.
With that in mind, the EEOC is making a unique request of the OMB. They are asking the OMB to carve out Component 1, assign it a new control number, and approve just that for continued use. The EEOC intends to then let the “old” (current) control number expire, effectively “killing” Component 2. Notice in the Federal Register is scheduled to be published tomorrow.
What Does This Mean To You?
Nothing at all. If you are a company that is currently required to file EEO-1 Component 2 reports for 2017 and 2018, you are still required to file, and the deadline is still September 30.
What if the EEOC has to extend the filing deadline beyond September 30, won’t OMB approval for Component 2 expire? No. When the EEOC submits the materials to the OMB for review, the approval for the current information collection is automatically extended while the OMB considers the EEOC’s request.
Here is where things might get a little tricky. The federal district court has ordered the EEOC to leave the Component 2 filing period open until the percentage of employers that file Component 2 is equal to or greater than the average percentage that filed Component 1 reports over the last four years. So, it is quite possible that the EEOC will be required to extend the current deadline beyond September 30, when OMB approval is set to expire. As noted, that approval is extended while the OMB considers the EEOC’s request.
But if, for instance, the EEOC extends the deadline to
October 31, but OMB approves Component 1 and lets approval for Component 2
expire on say, October 15, employers could no longer be legally required to
file Component 2. Is that a
possibility? Yes, it is, and some people
might advise employers to hold off filing Component 2 for that reason. But that assumes that the EEOC and the OMB
are willing to risk contravening or undermining a federal district court order.
Unless something like that very specific series of events happens, you are
still required to file.
Be skeptical of any “wait and see” advice you might receive. No one knows what the EEOC’s legal strategy is except the EEOC, no one can predict what will happen with the federal case on appeal, and no one can predict what the OMB will or will not approve or when. Anyone who claims otherwise probably also claims to have a bridge in Brooklyn for sale. What we do know with absolute certainty is that there is currently a legal obligation to file and a deadline of September 30 for doing so. If that changes, we’ll let you know.