To Report or Not To Report: Pay-Data Drama Continues
We reported earlier this month when a federal judge resurrected the requirement that employers turn over compensation information along with standard demographic figures.
Now, in the latest twist in the saga, the EEOC just unveiled its 2019 EEO-1 reporting system without any request for such pay data.
According to a new legal alert from Fisher Phillips, it appears as though employers will not have to provide information about their employees’ 2018 compensation “for the time being.”
The EEOC’s latest reporting requirements provide “some much-needed breathing room for employers,” according to the alert, with no indication that pay-data collection is in any way imminent. Indeed, the portal for submitting the EEO-1 report contains no method by which employers could provide compensation information even if they wanted to.
And there’s no word on what (if any) changes employers should expect on the topic. According to a statement posted on the EEOC site: “The EEOC is working diligently on next steps in the wake of the court’s order … which vacated the OMB stay on collection of Component 2 EEO-1 pay data. The EEOC will provide further information as soon as possible.”
Among the unanswered questions, the authors list the following: “Will the EEOC or OMB appeal the judge’s ruling to the D.C. Circuit Court of Appeals? Will the judge’s ruling be put on hold during the pendency of any such appeal? What if the judge responds to today’s EEOC notice with a reprimand to the EEOC, requiring it to begin collecting pay data immediately? How could the agency comply if it does not have its own system in place to collect and process the new data? When will employers need to begin providing pay data, if at all?”
As for what’s next, the authors note, “We fully expect the EEOC or OMB to appeal the judge’s decision and seek a delay of the revised EEO-1’s implementation while the appeal is pending.”
However, they conclude, employers should operate under the assumption that they will soon have to comply with the revised EEO-1 reporting rules, “regardless of whether because the judge forces the EEOC’s hand immediately in response to today’s development, or because the appeals court does not agree that the rule should be suspended while the appeal unfolds.
“While we cannot predict whether either of these events will actually occur,” the authors write, “it is best to operate under a worst-case-scenario mindset and prepare accordingly.”