In March 2019, a federal judge reinstated the EEOC rule requiring companies to disclose pay data on their annual EEO-1 forms (see our previous advisory here). On April 25, 2019, the judge ordered the EEOC to collect 2018 pay data by September 30, 2019. Employers should begin reviewing pay data to determine whether the necessary data for 2018 are readily available in order to prepare for timely filing, but costly system changes should probably not be incurred until future requirements, if any, are established.

Deadline for Submitting EEO-1 Pay Data is September 30, 2019

On April 25, 2019, federal Judge Tanya Chutkan ordered the EEOC to collect 2018 pay data (EEO-1 Component 2) by September 30, 2019. This means that all employers who must file EEO-1 forms (private employers with 100 or more employees and federal contractors with 50 or more employees) are required to report by the new deadline how much they paid employees of different sexes, races, and ethnicities last year. On April 29, 2019, the EEOC announced that it anticipates the Component 2 survey will open in mid-July, and that it will notify filers of the precise date once it is available.

The judge also gave the EEOC the option of collecting pay data for 2019 in lieu of collecting 2017 pay data. If the EEOC elects to collect 2019 pay data, this collection would occur during the normal 2020 EEO-1 collection cycle. 

The EEOC will post a notice on its website by May 3, 2019, announcing whether it will collect data for 2017 or 2019. We will post another advisory as soon as this is announced.

What Employers Should Do Now

• If you have not already done so, comply with the existing deadline for submitting Component 1 of the EEO-1 form, which was not affected by the judge’s order and remains May 31, 2019.
• Determine whether your HR Information System is currently tracking the pay data necessary to complete the revised EEO-1 form. Consult with counsel before undertaking any costly or significant system revisions, as it is unclear whether the data collection system or requirements will change after the 2018 data collection is complete.
• Prepare to file EEO-1 Component 2 forms by September 30, 2019.
• Consider conducting a privileged internal analysis to proactively find and fix pay disparities.