EEOC Aims to Require Pay Data

February 3, 2016

AA017956On Jan. 29, the U.S. Equal Employment Opportunity Commission (EEOC) proposed a revision to the Employer Information Report (EEO-1) to include collecting pay data from employers, including federal contractors, with more than 100 employees. According to the EEOC, this new data will assist the agency in identifying possible pay discrimination and assist employers in promoting equal pay in their workplaces.

The EEOC collects EEO-1 reports through its Joint Reporting Committees and provides the data to the Office of Federal Contract Compliance Programs (OFCCP) at the Department of Labor. EEO-1 data provides the federal government with workforce profiles from private sector employers by race, ethnicity, sex, and job category. This proposal would add aggregate data on pay ranges and hours worked to the information collected, beginning with the September 2017 report.

The new pay data is intended to provide EEOC and the OFCCP of the Department of Labor with insight into pay disparities across industries and occupations and strengthen federal efforts to combat discrimination. This pay data would allow EEOC to compile and publish aggregated data that will help employers in conducting their own analysis of their pay practices to facilitate voluntary compliance. The agencies would use this pay data to assess complaints of discrimination, focus agency investigations, and identify existing pay disparities that may warrant further examination.

If a business is not required to file the EEO-1 now, it would not be required to file the EEO-1 with pay data. Under this proposal:

  • Federal contractors with 49 or fewer employees would not file the EEO-1. This is current practice.
  • Federal contractors with 50-99 employees would not report pay data. But they would report ethnicity, race, and sex by job category, as they currently do.
  • Private employers with 99 or fewer employees that are not federal contractors would not file the EEO-1 at all. This is the same rule that applies now.

The first EEO-1 with pay data would be due on Sept. 30, 2017. The EEO-1 due this year—on Sept. 30, 2016—would be the current EEO-1 (no pay data).

EEOC’s current proposal is in response to recommendations from independent studies and the EEOC’s work with the President’s National Equal Pay Task Force, which proposed new data collection requirements to combat pay discrimination in the workplace.

The proposed changes are available for review on the Federal Register website and were officially published in the Federal Register on Feb. 1, 2016. Members of the public have 60 days from that date, to April 1, 2016, to submit comments.

Please click here to find the proposed notice.

While NSBA is still reviewing the proposed changes and will be submitting formal comments in advance of the deadline, we are concerned that by including pay data from employees, it will place additional costs, burdens and requirements on some small employers–those with 100 or more employees, will encourage costly investigations and subject innocent employers to the stigma of being accused of equal pay violations, when their pay practices are fully consistent with the law.