While there is no requirement for Employers to file an EEO-1 Report during Calendar 2017, do not start celebrating too quickly. The "New and Improved" EEO-1 Reports are due by March 31, 2018 and require expanded/new reporting requirements. These new/expanded reporting requirements not only require reporting with regard to race, ethnicity, gender, etc., but also require reporting on the basis of total compensation and total hours worked by race, ethnicity, gender, EEO-1 category and designated salary bands.
While there has been some discussion that the new Trump Administration will take a "meat axe" to the new EEO-1 Report requirements, no one can assume that will happen. Therefore, Employers must become proactive and prepare to comply with these new requirements until they are officially withdrawn. With that thought in mind, here are some things to consider:
- Do you employ at least one hundred (100) employees, which triggers the requirement of the revised EEO-1 Report? If you are not a Federal Contractor and have less than one hundred (100) employees, the new reporting requirements require nothing of you. If you are a Federal Contractor and employ between fifty (50) and ninety-nine (99) employees, you can continue to file the old version of the EEO-1 Report without the "new and enhanced" data reporting. As a Federal Contractor, please note that if you are subject to the Vietnam Era Veterans Readjustment Assistant Act (contracts in excess of $150,000.00), you must file a VETS - 4212 Form by September 30, 2017 even though no EEO-1 Report need be filed in 2017.
- How do you account for hours worked by exempt employees? You have two options: you either have to report forty (40) hours per week for full time exempt employees and twenty (20) hours a week for part time exempt employees, or report their "actual hours of work". Reporting the "actual hours of work" of exempt employees may be somewhat challenging due to the fact that in most cases, exempt employee are not required to keep track of "actual hours worked".
- For reporting purposes, you may pick any pay period between October 1 and December 31 for reporting. Because of the close of the year as of December 31, 2017 for the annual tax accounting and reporting mechanisms that are already in place as of that date, it is likely that most Employers will use December 31, 2017 to not duplicate accounting procedures. December 31, 2017 is a Sunday.
- You must insure that you separate your employees into the "different salary bans as designated by the EEOC". These "salary bands" are:
$19,239.00 and under;
$19,240.00 - $24,439.00;
$24,440.00 - $30,679.00;
$30,680.00 - $38,999.00;
$39,000.00 - $49,919.00;
$49,920.00 - $62,919.00;
$62,920.00 - $80,079.00;
$80,080.00 - $101,919.00;
$101,920.00 - $128,959.00;
$128,960.00 - $163,799.00;
$163,800.00 - $207,999.00;
$208,000.00 and over.
This "salary band separation" may be the most challenging due to the fact that it will be a total accounting nightmare. As well, while as the Employer you are putting individuals in these "salary bands", you must also begin assessing whether there are legitimate non-discriminatory factors (seniority, specific time in a specific job, etc.) that will explain any pay differences between employees who are doing "the same job".
- Do you have all necessary information with regard to race, ethnicity and gender information from your employees? If not, should you consider issuing a voluntary self-identification survey to capture that information? If you do such a survey and an employee or multiple employees do not respond, you are still required to report.
The new EEO-1 Requirements will be a time consuming job and starting early may be advantageous to any Employer. As well, it may be a very good idea to have a practice run at trying to complete the Report well prior to the March 31, 2018 deadline.
Certainly the reconsideration of the "New and Improved" EEO-1 Report would fit into the Trump Concept of removal of unnecessary regulation, but whether that will happen, only time will tell. Conservative Employers, at this point, may want to begin preparations to comply with the new requirements. Employers that are more tolerant of risk, on the other hand, may want to continue to take a wait-and-see approach, understanding that they may then have difficulty filing a complete and timely report in the event the new requirements remain in place.
Questions? Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at [email protected]