Just when you thought our long national nightmare had ended…
The Equal Employment Opportunity Commission recently revealed that it was extending indefinitely the Sept. 30 filing deadline for employers required to submit their Form EEO-1 Component 2 reports just days before the deadline was to expire because not enough employers had done so.
EEOC reported the deadline extension to the federal district court judge who is supervising the filing process after she earlier found the commission had violated the law when it attempted to withdraw the Component 2 reporting requirement that was earlier imposed by the Obama-era EEOC.
The judge had set a target response rate of 72.7% of eligible employers, but EEOC reported that as of Sept. 27 only about 39.7% of those expected to file had submitted their reports. The target response rate imposed by the judge had not been made public prior to that commission’s recent notice to the court of the deadline extension.
Legal observers believe that some employers had waited to the last minute to see if the judge’s original decision would be tossed out on appeal, which given the circumstances should have been considered a forlorn hope.
“Although the response rate is quite low, it is believed that many employers have been waiting until Sept. 30 to file their EEO-1 submissions—because they need more time, see no reason to file early, or are holding out hope for a last minute stay of the requirement (which does not appear to be in the offing—sorry!),” attorneys Kate Gold and Guy Brenner of the law firm Proskauer Rose said on Sept. 27.
One possibility they don’t mention is that it also is likely that many eligible employers are simply unaware of the entire issue, or have been unable to follow all of the twists and turns of the Form EEO-1 legal controversy as it rapidly unfolded earlier this year.
Although the deadline has passed, Gold and Brenner urged employers to make every effort to submit the reports as quickly as is practicable. “Although there is fear that the 72.7% response rate may never be hit, employers should be comforted that it appears likely they will have at least a few more days to make their submissions, if necessary.”
Mandated by a federal district court decision earlier this year, the EEO-1, Component 2 form requires that employers collect extensive employment data organized by 12 pay bands that range in salary from about $19,000 to more than $208,000 a year, divided across 10 job categories.
This information then must be divided by the same racial, ethnic and gender groupings that employers previously have used when submitting demographic data in earlier EEO-1 Forms that were in use before that changes were made by the Obama-era EEOC that were reversed by the Trump-era commission, only to be reversed again by the judge.
All U.S. employers with 100 or more employees, as well as federal contractors and subcontractors who employ 50 or more workers, must supply aggregated data for 2017 and 2018 regarding the pay and hours employees worked.
EEOC expects this data to be drawn from one single payroll period of their choosing that occurred between Oct. 1 and Dec. 31 of each of the reporting years. Employers are required to submit Component 2 if they had 100 or more employees during both of these workforce snapshot periods (50 for federal contractors and subcontractors).
In recent months EEOC issued guidance memos designed to assist employers who have non-binary employees – those individuals who choose not to identify as male or female – in their workforces, as well as about n how to fill out the form for employers who were involved in corporate mergers, acquisitions and spin-offs.
The commission also recently announced that it does not intend to ask employers for the same Component 2 data in 2020.
Additional questions about this year’s EEO-1 Form should be submitted to the University of Chicago’s National Opinion Research Center (NORC) HelpDesk. (NORC is assembling and analyzing the data for EEOC). The center can be contacted toll‑free at 877-324‑6214 or by email at [email protected]. Additional information and advice is available from EEOC at: https://eeoccomp2.norc.org/info. The commission also is offering the answers to employers’ frequently asked questions at: https://eeoccomp2.norc.org/faq.