November 22, 2019
Equal Employment Opportunity Commissioner Charlotte Burrows challenged employers to present an alternative to the on-again/off again pay data collection known as EEO-1, Component 2, only hours before the Commission said it would publish an advance notice of proposed rulemaking in September 2020 that may include a new pay data reporting requirement.
At an EEOC hearing this week, employer representatives continued to argue that the burdens of data collection, organization, and reporting are too much, especially given the lack of usefulness of the data.
Future rulemaking announced: After the hearing, the EEOC’s fall regulatory agenda provided public notice that it may adopt a “new reporting requirement by which employers would submit pay data or related information as reasonable, necessary, or appropriate.”
Off again: Prior to the announcement of its fall regulatory agenda, the EEOC said it would not collect Component 2 pay data in the future and asked for comments on that decision under the Paperwork Reduction Act.
On again-ish: The EEOC had set November 11 as the deadline for reporting, but just before Halloween, a judge said the collection must remain open into next year. The EEOC has said that it is not planning to continue using the EEO-1 Report to collect Component 2 pay data information, which the Commission originally added to the EEO-1 in 2016.
In her opening statement, Commissioner Victoria A. Lipnic recalled the long history of the process. She said that the hearing wasn’t convened to draw on a blank slate, nor were the assembled gathered to speculate. She expressed her desire to find a regulation which balances compliance burdens with data utility. But in closing, she gave a hat tip to advocates who have increased attention on the need to improve gender pay balance more quickly.
Where that leaves us: The EEOC expects to publish an advance notice of proposed rulemaking on the potential new reporting requirement in September 2020, with a two-month-long comment period to follow. Meanwhile, proponents of the EEO-1 pay data collection may try to force the EEOC to collect even more detailed data though additional legal action. It is doubtful that any court can compel the Commission to do so as long as it can justify its decision based on the public comments the agency receives.