Last week, U.S. District Court Judge Tanya S. Chutkan ruled that the EEOC may not discontinue its pay data collection efforts on November 11, 2019, but rather, must continue its collection efforts until it has collected from at least 98.3% of eligible reporters and must make all efforts to do so by January 31, 2020. The ruling is the latest in a lengthy saga regarding whether EEO-1 Component 2 pay data (data on employees’ W-2 earnings and hours worked across broad job categories, and broken down by ethnicity, race, and sex) would be collected—a saga that began with the Office of Management and Budget staying collection efforts, and culminated last Spring when Judge Chutkan ruled the decision to stay the collection lacked the reasoned explanation required by the Administrative Procedure Act (see overview here). After vacating the stay, Judge Chutkan initially set the deadline for data collection for May 31, 2019, but later extended it to September 30, 2019. READ MORE
The prognostication efforts are going into high gear as employers seek to forecast and prepare where the Department of Labor may land on its final overtime rules. As with all rules in the post-comment phase, government officials have not given any indication on when the final rules will be published (and become effective) or what they will contain. Our insight is the final rule will be published ahead of schedule before the July regulatory agenda date, perhaps as soon as later this month. The Congressional Review Act deadlines (described here) strongly indicate that the DOL will seek to avoid the prospect of any effective congressional action on the final rules. As to the final rule’s content, we believe that the Office of Management and Budget and DOL are taking into account the political winds and other considerations before making a final decision. Once published, however, the DOL can set the effective dates as early as 60 days which would give employers a very difficult compliance burden.
The U.S. Department of Labor (DOL) sent its much anticipated final overtime regulations to the Office of Management and Budget (OMB) for review on March 14, 2016. Technically, this move came slightly ahead of schedule. OMB now has 90 days to review, which would put its “due date” in mid-June – ahead of the July regulatory agenda publication date we previously reported. However, as these overtime regulations are a top-line priority subject to intense political scrutiny, there is reason to believe OMB may not complete its review within the 90-day window.
On March 16, the Equal Employment Opportunity Commission heard testimony from a variety of advocacy groups, academics and employer representatives on with regard to its proposed revisions to the EEO-1 adding W-2 pay data. Gary Siniscalco from Orrick provided testimony as an employer representative. Click here for Gary’s testimony.
In August 2014, the Department of Labor’s Office of Federal Contractor Programs (“OFCCP”) proposed that federal contractors report compensation information on an Equal Pay report. Amid significant contractor comments that OFCCP coordinate with the EEOC to amend the Employer Information Report (“EEO-1”), EEOC did so on January 29, 2016. The EEOC intends to ask the Office of Management and Budget to approve additional data collection that would require most employers to submit aggregate data on pay ranges and hours worked. The EEOC believes that the additional data “will assist [EEOC and OFCCP] in identifying possible pay discrimination and assist employers in promoting equal pay in their workplaces.” However, questions remain whether this data would yield any meaningful analysis of actual pay differences that would assist either agency in uncovering pay discrimination.