The continuing legal battle over whether the U.S. Equal Employment Opportunity Commission (EEOC) will collect pay data from employers has understandably left many employers confused about their obligations. Most recently, the EEOC indicated that it believed it would be able to collect pay data by September 30, 2019—but much remains to be ironed out. Historically, covered employers—including companies with more than 100 employees and smaller companies who are government contractors—have only had to report employee sex and race data on annual EEO-1 reports.

On September 29, 2016, under the Obama administration, the Office of Management and Budget (OMB) approved a revised EEO-1 that would require covered employers to also provide employee pay data on the EEO-1. Under the Trump administration, the OMB stayed that requirement on August 29, 2017, prior to the date on which covered employers had any legal obligation to gather and submit pay data. Read our previous alert.

Various groups challenged the OMB's stay, and initiated litigation to have the pay data requirement reinstated. On March 5, 2019, Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia vacated the decision of the OMB to stay and reconsider the EEOC's 2016 revised EEO-1 Component 2 (pay data) collection.

On April 3, 2019, the government submitted a response to Judge Chutkan's March 5 order describing how the EEOC proposes to undertake the collection of pay data under the revised EEO-1. The government proposed a September 30, 2019 deadline for covered employers to submit the relevant 2018 pay data. The judge now will have to assess the government's proposal and issue a ruling on whether the court accepts the government's plan. Meanwhile, other groups continue to challenge the pay data collection requirement.

The key takeaway for employers is that covered employers are still required to file the EEO-1 Report in its present form, identifying the number of employees in various job groups by race and sex, by May 31, 2019. The judge's order and the government's submission does not alter this deadline or the type of report due on May 31, 2019. The reporting period is open now and reports can be filed here.

We are closely monitoring the situation and will continue to send updates with important developments.