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The EPL Insurance Advisor – May 2019

To assist underwriters and claims professionals in assessing emerging employment risks, we are pleased to provide the first issue of our newsletter. The EPL Insurance Advisor highlights topical issues in claims, defenses, and liability risk management developments.

EEO-1 Pay Data Deadline Reinstated

All private employers with a workforce of 100 or more who are subject to Title VII must now submit 2017 and 2018 pay data to the Equal Employment Opportunity Commission by September 30. The reinstatement results from a March 4 ruling by Washington, D.C., District Court Judge Tanya Chutkan in National Women’s Law Center v. Office of Management and Budget, Civ A. No. 17-cv-2458 (D.D.C.). Importantly, the “Component 2” pay data report is not limited to employers who are federal contractors. With the reinstatement of the revised EEO-1 report, subject employers now have two 2019 compliance deadlines: May 31 for the traditional EEO-1 report, including race/ethnicity and gender reporting in each of the 10 occupational categories, and September 30 for the wage and hour/pay data report. In addition to the information required by the traditional EEO-1 Report, the Component 2 report adds a reporting requirement of total annual hours worked for those same employees in each pay band and snapshot pay data within those 12 defined pay bands. The EEOC is prohibited by statute from publishing the employment data derived from the EEO-1 reports prior to the institution of any Title VII proceeding, other than as non-employer-specific aggregate data. As for the timing and logistics of the Component 2 report, the Commission released the following statement

Employee Earnings and Hours Data Due to EEOC by September 30, 2019

On April 25, 2019, in National Women’s Law Center, et al. v. Office of Management and Budget, Judge Tanya Chutkan of the U.S. District Court for the District of Columbia ruled that the Equal Employment Opportunity Commission (EEOC) must immediately take all steps necessary to comply with its prior March 4, 2019 decision. That previous decision lifted a stay that the White House Office of Management and Budget (OMB) had imposed in August 2017, which prevented a new rule from going into effect requiring employers to report additional information regarding employee pay data using a revised Employer Information Report EEO-1 (EEO-1) form.

EEOC Pay Data Reporting Deadline Is Now September 30, 2019, But an Appeal Is Pending

Employers with 100 or more employees, and federal contractors with 50 or more employees, historically have been required to file annual Employer Information Reports (“EEO-1 Reports”) disclosing their number of employees by job category, race, and sex. In 2016, the Obama administration’s EEOC expanded the required EEO-1 reporting data to include pay and hours worked data. The intention of this expanded reporting requirement was to help the agency identify discriminatory pay gaps. Under this expanded rule, covered employers would have been required to submit the pay data by March 31, 2018.

Despite Agency Appeal, Employers Required to Submit Component 2 Pay Data for Years 2017 and 2018 by September 30, 2019

Executive Summary: On May 3, 2019, the U.S. Equal Employment Opportunity Commission (EEOC) confirmed that employers will be required to submit Component 2 pay data for years 2017 and 2018 to the EEOC by September 30, 2019. The announcement came on the heels of an April 25, 2019, judicial order mandating that employers submit Component 2 data for year 2018 by the same September 30, 2019, deadline, and requiring the EEOC to designate an additional year (either 2017 or 2019) for data collection. Then, hours after confirming that the 2017 data would be collected, the Department of Justice filed a notice of appeal of the March 4, 2019, and April 25, 2019, judicial orders to the United States Court of Appeals for the District of Columbia Circuit.

An Update on EEO-1 Component-2 Pay Data Collection: A Workplace Policy Institute Briefing

On April 25, in National Women’s Law Center (NWLC) et al. v. Office of Management and Budget (OMB) et al., the U.S. District Court for the District of Columbia ordered the Equal Employment Opportunity Commission (EEOC) to take immediate steps in preparing to collect EEO-1 “Component-2” compensation data for calendar year 2018 by September 30, 2019.

Double Duty: You Will Soon Have To Turn Over Pay Data From Both 2017 And 2018

The EEOC just announced that, in order to comply with a recent shocking court order, most employers will need to turn over compensation information from both 2017 and 2018 when they submit their Component 2 pay data with their EEO-1 submission on September 30, 2019. While there is still a chance that an appeals court could put the pay data/hours worked reporting requirement on hold once again, or that a newly reconstituted EEOC Commission might modify the regulations, you should start taking action immediately under the assumption that all of this information will need to be disclosed by the recently announced due date. Meanwhile, the May 31, 2019 deadline for the traditional demographic data (now called “Component 1” data) remains firmly in place.

EEOC to Require Employers to File 2017, 2018 Compensation Data by September 30, 2019

The U.S. Equal Employment Opportunity Commission (EEOC) will require covered employers to file EEO-1 compensation data for both calendar years 2017 and 2018 by September 30, 2019, the agency indicated in a notice sent on May 2, 2019 for publication in the Federal Register.

EEOC Announces Plans to Collect 2017 and 2018 Pay Data by September 30, 2019

On May 1, the EEOC announced plans to collect pay data for both calendar year 2017 and calendar year 2018 by September 30, 2019. A copy of the announcement scheduled to be published in the Federal Register on May 3 is available here.

EEO-1 Update: EEOC Selects to Collect 2017 Pay Data

As we previously reported, U.S. District Court for the District of Columbia Judge Tanya S. Chutkan ordered the Equal Employment Opportunity Commission (EEOC) to collect two years of EEO-1 Component 2 pay data including 2018 and pay data from either 2017 or 2019. On May 1, 2019, the EEOC chose to collect 2017 pay data in addition to the 2018 pay data collection previously announced. According to the EEOC, employers must file this data by September 30, 2019. The announcement regarding 2017 pay data is expected to be published in the Federal Register on May 3, 2019.