It’s here and it’s real.  The written order memorializing Judge Chutkan’s oral Order setting the September 30, 2019 deadline for collection of employer pay data reveals these additional details:

  • EEOC is ordered to collect EEO-1 Component 2 pay data for calendar years 2017 and 2018
  • In lieu of collection of Component 2 data for calendar year 2017, EEOC may satisfy the court’s Order requiring two years of data by collecting EEO-1 Component 2 data for 2019 during the 2020 EEO-1 reporting period.
  • If EEOC determines chooses to collect EEO-1 Component 2 data for 2019 instead of 2017, it must notify the court and Plaintiffs of that decision by May 3, 2019.
  • EEOC must inform employers by April 29, 2019 via their EEOC’s website and publication in the Federal Register that 2018 Component 2 is due by September 30, 2019. It must report at that time if it has decided whether to collect 2017 or 2019 data in addition to 2018 data. If it has not, it must decide and inform employers by May 3, 2019 of its decision.
  • EEOC must file 3 week status updates with the Court on its progress of collection of 2018 Component 2 data beginning May 3, 2019.
  • The EEO-1 Component 2 data collection(s) will not be deemed complete, for the purpose of the Order, until the percentage of EEO-1 reporters that have submitted their required EEO-1 Component 2 reports equals or exceeds the mean percentage of EEO-1 reporters that actually submitted EEO-1 reports in each of the past four reporting years.
  • The Paperwork Reduction Act approval for the revised EEO-1 form including Component 2 pay data, OMB Control No. 3046- 0007, shall expire no later than April 5, 2021 – instead of the current September 30, 2019 expiration.

There is a lot to unpack here but the gist of it is EEOC needs  to collect 2018 pay data by September 30, 2019.  It also has to collect a second year of pay data.  It can decide whether it wants to collect either 2017 or 2019 pay data and must let employers know by May 3, 2019 which year they will be collecting.  Their obligation to collect both years of data will not be satisfied until a certain threshold of filers is achieved.  The authorization to collect the data is extended until April 2021 which would give the Agency the time to comply with the Order without the authorization to collect expiring.  EEOC must provide regular updates to the Court on the progress of the data collection.

We will continue to monitor this developing story and will provide additional information, including details of EEOC’s notices, as they become available next week.

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Photo of Laura A. Mitchell Laura A. Mitchell

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She is a member of the firm’s Affirmative Action and OFCCP Defense practice group as well as the firm’s Pay Equity Resource Group. She is also on the leadership team for the firm’s Government Contractor Industry Group.

Her practice is focused on representing government and non-government contractors in OFCCP matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming from OFCCP regulations. Ms. Mitchell personally oversees the development of hundreds of AAPs each year and is intimately involved in the defense of numerous OFCCP audits. She also spends significant time counseling companies in connection with conducting pay equity analyses as well as government contractor employment obligations.

Ms. Mitchell is the editor and a principal contributor of The Affirmative Action Law Advisor blog and frequently presents on pay equity, affirmative action compliance, OFCCP enforcement trends, and government contractor obligations.

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