WASHINGTON — Employers may have thought they got a reprieve from having to report pay data in their EEO-1 submissions — which are due to the U.S. Equal Employment Opportunity Commission (EEOC) May 31, 2019 — when the submission portal opened Monday without a way to accept that information. But thanks to a federal judge's order Tuesday, that may not be the case (National Women's Law Center v. Office of Management and Budget, No. 17-cv-2458 (D.D.C. March 19, 2019)).
In a status conference, Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia ordered the EEOC and the White House's Office of Management and Budget (OMB) to inform employers whether they would need to report pay data categorized by race, sex and ethnicity by April 3. Sunu Chandy, a representative for plaintiffs in the case and legal director at the National Women's Law Center, confirmed the news in an interview with HR Dive.
The decision follows Chutkan's surprise March 4 decision to put the pay reporting requirement back in effect. OMB previously stayed the a mandate, but the judge found that it provided "inadequate reasoning" to support its decision.
The situation leaves some ambiguity for employers, David Cohen, president of DCI Consulting Group, said at the Society for Human Resource Management's Employment Law and Legislative Conference Tuesday. The EEOC, he said, could delay the reporting deadline or somehow stay on the pay data component. But he left attendees with a warning about pay data reporting in general: "It's coming."
Big: Cohen says that by the end of today, we'll likely know whether employers will need to report pay data as part of EEO-1 #SHRMLeg— Ryan Golden (@RyanTGolden) March 19, 2019
Cohen told HR attendees that the EEO-1's pay component would require HR teams to provide employee W-2 data and information about their hours worked. He also suggested employers conduct a pay audit of their workforce every year. "Look at the whole [employee] lifecycle. Look at everything: promotions, hiring, terminations, wage gap … and then do a pay equity study," Cohen said. "Unless you do that, you’re not going to figure out where your barriers are."
According to Chandy, the court was "clearly perturbed" in Tuesday's conference that federal agencies hadn't alerted employers to the possibility that the requirements would be put into effect for the current EEO-1 deadline. Chandy said the requirements are very much in play and that "any suggestion to the contrary is a violation of the court's order." She said the court also was "very clear that the federal government cannot rely on the comments of one group of stakeholders only, namely employers," and that it "made clear that the submission in two weeks must be detailed."
Chutkan also ordered plaintiffs in the suit to issue a response by April 8.