Not a week goes by without the question being asked, “What should I be doing right now to prepare to file the revised EEO-1 Report?” And the answer is:
“We still don’t know.”
As you are aware, the EEOC moved the filing date for the revised EEO-1 from September 30, 2017 to March 31, 2018. This was done to ostensibly give employers additional time to gather the compensation data that now must be reported along with the customary employee demographic information provided to the Joint Reporting Committee.
However, there has been substantial controversy and conflicting reports as to whether the compensation reporting provision of the revised EEO-1 will survive in its current iteration. What we do know is that:
- Legislation has been introduced that would prevent the EEOC from spending any money to implement the new report. Note that this would not do away with the requirement to gather and submit the data.
- President Trump has nominated two Republicans to the remaining vacant EEOC Commission slots. Janet Dhillon has been nominated to also be EEOC Chairperson, and Daniel M. Gade was nominated to the last open position. The nomination and appointment of Chair Dhillon and Commissioner Gade would swing the make-up of the leadership of the EEOC to majority Republican. This would seem to indicate a willingness to address the concerns voiced by the employer community regarding the revised EEO-1.
- The U.S. Chamber of Commerce has petitioned the Office of Management and Budget (OMB) to re-evaluate the “burden estimate” to comply with the data collection and reporting requirements of the revised form.
- On August 3, 2017, Acting EEOC Chairperson, Victoria Lipnic, announced at the National Industry Liaison Group (NILG) conference in San Antonio, TX that she had contacted the new head of the Office of Information and Regulatory Affairs (OIRA), Neomi Rao. The OIRA is the office within OMB charged with reviewing proposed regulations as well as their implementation. Acting Chair Lipnic has not been shy about voicing her opinion that the compensation portion of the revised EEO-1 is a “poster child” of the excessive regulatory burden that the current administration vowed to overturn after the election. Acting Chair Lipnic has requested that OIRA and OMB provide employers with an answer by August 31, 2017 regarding the future of the revised EEO-1.
Speculation at the conference was that while the March 31, 2018 filing date would remain unchanged, implementation of the compensation and reporting component would likely be delayed a year.
So, what should employers be doing now? Our recommendation is to continue to wait, at least until the end of August, to see if there is any guidance forthcoming from the EEOC or OMB. At that point, if there is still no information regarding future of the compensation component, then employers should begin to evaluate what will need to be done to file the revised EEO-1, including the compensation component, by March 31, 2018. This should be accomplished, keeping in mind that between August 31, 2017 and March 31, 2018, much can change.