A federal judge's reinstatement of an Obama-era workforce pay-data disclosure rule will pose “significant practical challenges” for the U.S. Equal Employment Opportunity Commission and require the adjustment of deadlines imposed on employers, the U.S. Justice Department said Wednesday in a new court filing.
The Justice Department was responding to a court order issued by Judge Tanya Chutkan of the U.S. District Court for the District of Columbia, who reinstated the pay-data rule last month after concluding the Trump administration unlawfully scuttled it. The rule was crafted as a measure for the government to investigate and combat workplace inequality.
Business advocates have argued the new data-collection rule, which requires large employers to provide pay information based on gender, race and ethnicity, is onerous and could be misinterpreted without greater context. Neomi Rao, then the Trump administration's regulatory czar, played a lead role in freezing the Obama-era rule.
The acting chairwoman of the Equal Employment Opportunity Commission, Victoria Lipnic, has concluded the agency must “adjust the collection deadline to September 30, 2019, in order to accommodate the significant practical challenges for the EEOC to collect” the compensation data from employers, the Justice Department said in its court filing Wednesday.
The government told Chutkan it would rely on an outside data and analytics contractor—at a cost of $3 million—to perform the collection of data that employers are now required to report to the EEOC.
The agency's chief data officer, Samuel Haffer, raised his concerns to the court in a declaration that was attached to Wednesday's filing. “The proposed timeline for undertaking and closing a collection of Component 2 data by September 30, 2019, raises significant issues with data validity and data reliability,” said Haffer, named the agency's data officer in November 2017.
Haffer “warns that there is a serious risk that the expedited data collection process may yield poor quality data because of the limited quality control and quality assurance measures that would be implemented due to the expedited timeline,” the Justice Department said in its court filing.
The National Payroll Reporting Consortium on March 29 said in a letter to the EEOC and Justice Department that “employers and service providers generally did not develop the data collection mechanisms and did not collect and store the necessary data … to comply with such a report for 2018.”
Tanya S. Chutkan, during her confirmation hearing before the Senate Judiciary Committee, to be United States District Judge for the District of Columbia. Feb. 25, 2014. (Photo: Diego M. Radzinschi/ALM)
Chutkan last month, rebuking the government, said employers were long on notice that reinstatement of the Obama-era rule was a possibility. The judge said the revised pay data collection “had been in place for almost a year by the time it was stayed.” Companies, the judge said, “were on notice that the stay could be withdrawn at any time.”
A former Obama-era EEOC commissioner, Jenny Yang, told the National Law Journal in March: “Pay data collection is long overdue.”
The Justice Department did not give any indication Wednesday whether the EEOC would seek to appeal Chutkan's order. That appeal would go to the U.S. Court of Appeals for the D.C. Circuit, where Rao now sits. She would be recused in any appeal there.
Read the Justice Department's new court filing below:
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Mike Scarcella
Mike Scarcella is a senior editor in Washington on ALM Media's regulatory desk. Contact him at [email protected]. On Twitter: @MikeScarcella. Mike works on a slate of newsletters: Supreme Court Brief | Higher Law | Compliance Hot Spots | Labor of Law.
