Employers face increasing demands and pressure to ensure and declare equitable pay for employees, not only from within their own workforces, but also from clients, customers, and government leaders. While states continue passing increasingly progressive pay equity laws, the requirements of such laws may not align with the purpose and intent of federal or state equal pay laws. Employers should be mindful of the risks associated with how state agencies may use pay data collections and be prepared to explain their practices and provide further response, if needed. READ MORE
On July 16, the EEOC announced plans to fund an independent study to evaluate pay data submitted by employers for fiscal years 2017 and 2018 through Component 2 of the EEO-1 form, both to inform potential next steps for the data, as well as to guide any potential future collections. As we reported last March, after a tumultuous history, the EEOC decided against renewing its request for authorization to continue collecting pay data under Component 2 of the EEO-1 form, which reflected employees’ W-2 earnings and hours worked across broad job categories, broken down by gender, ethnicity, and race. The EEOC’s decision in March ended a four-year saga – including litigation – over whether the pay data collection would go forward at all. Much of the controversy stemmed from critiques that the burden and confidentiality concerns implicated by the Component 2 submissions outweighed any potential benefit, particularly given the form’s reliance on W-2 earnings (as opposed to base pay or total compensation awarded for work performed in a given year), combined with the breadth of the pay bands and job categories used, as well as the inability for most employers to accurately track or report hours worked by exempt employees (as we reported here, here, here, here, here, here, here, here, and here). Despite last March’s announcement, the EEOC has not stated whether or how it plans to use the data it already has collected. READ MORE
Today, the EEOC formally confirmed that it will not renew its request for authorization to collect employer’s pay data under Component 2 of the EEO-1 moving forward. The notice is consistent with its announcement last September, marking the end of a four-year saga over whether the pay data collection would go ahead (as we reported here, here, here, here, here, here, here, here, and here). Notably, the notice does not explain how the EEOC intends to use the pay data it already has collected, although it makes reference to using it in Title VII proceedings. It does, however, confirm the EEOC’s intentions regarding sharing the EEO-1 pay data, including that the EEOC does not intend to share it with the Office of Federal Contract Compliance Programs (“OFCCP”), but under certain circumstances may share it with state and local fair employment practices agencies (“FEPAs”). The notice also provides guidance regarding a potential pay data collection by the EEOC in the future, including that the EEOC intends to “develop a plan for using pay data before initiating any data collection.” READ MORE
In yet another development in the closely watched case of Rizo v. Yovino, the en banc Ninth Circuit ruled that employers may not defeat a plaintiff’s prima facie case under the Equal Pay Act (EPA) by arguing prior pay is a “factor other than sex” within the meaning of the statute. By doing so, the Ninth Circuit reaches the same result as the previous opinion penned by the late Judge Stephen Reinhardt before his passing in 2018, including overruling Kouba v. Allstate, a prior Ninth Circuit opinion that held that prior pay could justify pay differentials in combination with other factors, and if relied upon reasonably and to effectuate a business policy. The majority opinion further holds that as a matter of statutory interpretation, a “factor other than sex” within the meaning of the EPA must be “job related,” yet it also makes clear that the EPA does not prohibit employers from considering prior pay in making starting pay offers (and in this regard differentiates the opinion from California’s salary history ban). Two separate concurring opinions agree with the result, but they criticize the majority opinion for giving too narrow a reading of the EPA’s fourth “catch all” defense and for embracing a view of prior pay that puts the Ninth Circuit at odds with other circuits and guidance from the U.S. Equal Employment Opportunity Commission (EEOC). READ MORE
As you’ll recall from our extensive coverage of the EEO-1 pay data collection saga (which we previously reported on here, here, here, here, here, here, here, here, and here), private employers, including federal contractors, have been busy collecting and submitting EEO-1 pay data to the EEOC. The deadline for submissions was initially set for May 31, 2019, but has since been extended multiple times. Earlier this month, U.S. District Court Judge Tanya S. Chutkan ruled that the EEOC 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. READ MORE
Yesterday, the EEOC announced that it does not intend to renew its request for authorization to collect employers’ pay data on the EEO-1 form in future years. The announcement comes less than three weeks before the September 30th deadline for employers nationwide to submit massive amounts of pay data for 2017 and 2018 (a deadline that is not impacted by the EEOC’s announcement).
The rollercoaster saga of the EEOC’s pay data collection (which we previously reported on including here, here, here, here, here, here, and here) began over three-and-a-half years ago when the EEOC announced in January 2016 its plan to revise the EEO-1 form to collect pay data (Component 2 data). The revised EEO-1 form requires employers to submit data on employees’ W-2 earnings and hours worked across broad job categories, and broken down by ethnicity, race, and sex. While the EEOC contends that the revised EEO-1 form will allow it to better assess pay discrimination, employers have expressed numerous concerns, including that the form may indicate “false positives,” as the broad EEO-1 job categories are not designed to group employees who perform similar work (as defined by federal and state equal pay and anti-discrimination statutes). READ MORE
The EEOC’s revised pay-data collection rule is back in force and the September 30, 2019 deadline is at our doorstep. Here is a quick overview of what employers should know and links to available resources. READ MORE
The EEOC has been no stranger to headlines in recent months, particularly on the issue of equal pay. As we recently reported, the EEOC’s long-dormant pay data collection rule, revived by the D.C. District Court in March, has caused an uproar of speculation as employers race to comply with increased data reporting requirements for their annual EEO-1 forms by September 30, 2019. But the EEOC is also busy addressing pay issues in court.
The EEOC has been ordered to collect employers’ EEO-1 Component 2 pay data by September 30, 2019. The D.C. District Court issued the order after finding back in March 2019 that Office of Management and Budget (OMB’s) decision to stay the collection of Component 2 pay data lacked the reasoned explanation required by the Administrative Procedure Act. See our prior blog posts here, here, and here about National Women’s Law Center v. Office of Management and Budget, No. 17-cv-2458 (TSC) (D.D.C.). Since then the court has been critical of the EEOC’s compliance with its order, and held a status conference and a hearing in March and April. READ MORE
Despite some initial news stories to the contrary, uncertainty still remains as to whether and when employers will be required to submit Component 2 pay data to the EEOC. See our prior posts here and here. On March 19, 2019, the parties in National Women’s Law Center v. Office of Management and Budget, No. 17-cv-2458 (TSC) (D.D.C.), participated in a status conference at which they discussed precisely when the EEOC planned to collect Component 2 pay data. The court asked the EEOC why it could not require employers to file Component 2 data by either May 31, 2019, the deadline by which employers are required to submit Component 1 data, or September 30, 2019, the expiration date of the authorization to collect Component 2 data under the Paperwork Reduction Act. READ MORE