The filing requirement applies to all employers with 100 or more employees that are subject to Title VII. In addition, the report must also be filed by employers with 50 or more employees that hold covered contracts with the federal government or first-tier federal subcontracts.

An employer with multiple physical locations is required to complete reports covering its principal or headquarters office, separate reports for each establishment employing 50 or more persons, and either (1) a separate report for each establishment employing fewer than 50 employees, or (2) an Establishment List showing the name, address, and total employment for each establishment employing fewer than 50 persons.

As a general rule, the JRC expects the reports for companies that are affiliated through common ownership and/or centralized management to be filed as part of their parent's report.

The gender pay gap and the new EEO-1

Addressing the persistent gap in pay between women and men was a priority for the Obama administration. In order to be able to understand and address the pay gap the Obama administration felt it necessary to regularly collect data from employers regarding employee compensation that could, among other things, be used to inform policy and direct enforcement efforts.

Initially, the administration proposed, through the OFCCP, to implement detailed reporting requirements on just federal contractors. However, when that proposal met with substantial opposition, it was withdrawn and replaced by a new proposal from the EEOC to require a much larger group of employers to report on compensation as part of their annual EEO-1 reporting.

The revised EEO-1 form

As "finally" implemented by the EEOC on September 29, 2016, the new EEO-1 required employers to report the total number of full and part-time employees by demographic categories in each of 12 pay bands listed for each EEO-1 job category based on W-2 wages. In addition, employers also had to tally and report the number of hours worked during the year by all the employees accounted for in each pay band.

In order to address issues regarding the burden of compiling this information, the EEO-1 reporting period was changed to supposedly simplify matching W-2 wages to the workforce snapshot. In particular, the deadline for filing the EEO-1 report was changed from September 30 of the reporting year to March 31 of the following year and the report is now to be based on a snapshot of the workforce taken from a payroll period between in October, November, or December.

A new administration

The proposed changes to the EEO-1 report have been very controversial. Employers are concerned that the information is sensitive and that the government cannot be trusted to maintain it confidentially. Employers also noted the significant burden required to compile this information and have argued that the collected information will be of little, if any, practical value for purposes of addressing the pay gap. Given these concerns, employers hoped that under a Republican president the new data collection requirements would be abandoned.

And, indeed, in an apparent response to employer concerns, the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) informed the EEOC in August 2017 that OIRA was initiating a review and immediate stay of the effectiveness of the pay data collection aspects of the EEO-1 form.

2017 EEO-1 reporting requirements

So as the dust has now settled, here is what covered employers must do in connection with their 2017 EEO-1 reporting.

The 2017 EEO-1 report must be based on a payroll snapshot taken between October 1, 2017 and December 31, 2017. The report must then be filed by March 31, 2018.

Although the JRC has not yet published the 2017 form and instructions, the report is expected to look the same as in prior years. Employers will only be required to report on employee numbers by establishment, broken down by EEO-1 job category, sex, and race or ethnicity. For now, employers are not being required to report on compensation or hours worked.

The EEOC has stated on its website that all those who filed EEO-1 data in the last survey cycle will receive their annual Notification Letter once the 2017 EEO-1 Survey is open along with filing instructions. Employers should expect to receive the letters toward the end of January 2018. Information about the 2017 EEO-1 Survey Opening will also be posted on the EEO-1 Survey Webpage at www.eeoc.gov/eeo1survey. As the EEOC has indicated that employers may not use their 2016 password for the 2017 survey, employers will likely be unable to complete the report prior to receiving their notification letters. As always, employers that have not previously filed an EEO-1 report will need to complete an initial registration.

The future

Although many would like to believe that the proposed changes to the EEO-1 report are now dead, that cannot be said with certainty. The gender pay gap remains an issue of great concern to many, including some individuals within the Trump administration and pressure on the EEOC and OFCCP to address the gap will continue. In addition, some members of Congress have sought to place pressure on the EEOC and OIRA to work toward a solution that will support some kind of compensation reporting. Nevertheless, with the future still so unclear, it probably makes sense to hold off on changes to HR information systems or other costly measures in anticipation of new EEO-1 reporting requirements. Continuing to watch and wait would appear to be the prudent course.

Other steps

With a new EEO-1 reporting deadline, some federal contractors may be tempted to change their affirmative action plan so that they can pull the data required for plan preparation and their EEO-1 reporting at the same time. While such changes may ultimately make sense, they are probably premature until we know that the change to a spring EEO-1 reporting period will be permanent.

It should also be noted that federal contractors required to file Vets 4212 reports will have to file their 2018 report based on a payroll period ending between July 1 to August 31, 2018. However, if the EEOC retains the March 31 reporting cycle for the EEO-1 report, it may be possible in future years for contractors to select December 31 as the basis for the VETS 4212 reporting. Contractors subject to EEO-1 and VETS 4212 reporting requirements will want to stay alert to future developments in this area.