In the ongoing litigation over EEO-1 pay data collection, the EEOC has now taken the position that Sept. 30, 2019 is the earliest date by which it could collect compensation data from employers. That date also coincides with the expiration date of the EEOC’s three-year authorization to collect that pay data.

The EEO-1 report’s pay data collection provisions were created back in 2016 as an addition to EEOC’s annual EEO-1 report. The goal was to collect and analyze employee wage information as part of an Obama Administration initiative directed toward pay discrimination.

Specifically, the pay data collection provisions required covered employers (i.e., private employers with over 100 employees, as well as certain government contractors) to report pay information broken down by race, ethnicity, and gender. “Component 1” data includes the number of employees broken down by job category, race, ethnicity, and sex. “Component 2” data, which is the subject of the current legal dispute, includes total hours worked and W-2 wage information broken down by race, ethnicity, and sex.

The pay data reporting requirement was originally set to become effective in March 2018, but the Trump Administration suspended those provisions in 2017. However, a March 2019 ruling by a federal court in the District of Columbia called for the provisions to be “immediately reinstated.” The EEOC’s authorization to collect pay data was for a three-year term that ends on Sept. 30, 2019. The EEOC was authorized to collect pay data twice during that term; once in 2017 and once in 2018. However, in a status report filed by the EEOC with the court last week, the agency said that it is not currently capable of collecting pay data by the Sept. 30, 2019 deadline, and that it must engage a third-party vendor to modify the EEOC’s data collection capabilities in order to collect 2018 pay data by the deadline.

The litigation is ongoing, and appeals are likely. It is unclear whether the EEOC will issue guidance on reporting requirements in light of the recent ruling. Despite these uncertainties, though, employers should submit the Component 1 EEO-1 report data (race, ethnicity, and gender) by May 31, 2019. Employers should also determine what arrangements will be necessary to submit Component 2 pay data at a later date.

For questions regarding this reporting requirement, please contact one of Taft’s labor and employment attorneys. We will provide updates on this issue as it continues to develop.