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OMB Stays EEO-1 Form Pay Data Collection Requirement

on Thursday, 7 September 2017 in Labor & Employment Law Update: Sarah M. Huyck, Editor

On August 29, 2017, the Office of Management and Budget (OMB) halted the new EEO-1 pay disclosure requirements required by the Equal Employment Opportunity Commission (EEOC), pending OMB review.

The Paperwork Reduction Act (PRA) gives the OMB’s Director the right to determine whether collections of information (like the EEO-1) meet the standards of the PRA.  In this context, pursuant to the PRA, the OMB may review an “already approved” collection of information if the OMB determines that the relevant circumstances related to the collection have changed, and/or that the burden estimates provided by EEOC at the time of initial submission were materially in error. 

In this case, the OMB has determined that both of the conditions for review have been met.  For example, after approving the revised EEO-1 form on September 29, 2016, the EEOC subsequently released data file specifications for employers to use in submitting EEO-1 data.  These specifications were not contained in the Federal Register notices as part of the public comment process, nor were they outlined in the supporting statement for the collection of information.  As a result, the public did not receive an opportunity to provide comment on the method of data submission to EEOC.  In addition, the EEOC’s burden estimates did not account for the use of the particular data file specifications, which may have changed the initial burden estimate.

Additionally, the OMB also stayed the effective date of the revised EEO-1 because it “is concerned that some aspects of the revised collection of information lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues”—a sentiment shared by most employers.  

The OMB made clear that the previously approved EEO-1 form to collect data on race, ethnicity, and gender may be used during the stay period while the OMB reviews the rule, but that the pay data requirements will not be required until the OMB concludes its review (and in that case, if at all).  

What happens now?

The EEOC subsequently confirmed that employers must still submit data on race, ethnicity, and gender using the previously approved EEO-1 form (Component 1).  Employers may begin filing the report between January 1, 2018, and March 31, 2018.  

Before you scrap your efforts to gather the aggregate pay data, it is possible that the OMB will determine that the EEOC’s pay data requirement does not violate the PRA.  In other words, you should continue to maintain the information, but not report it unless specifically required to do so following the OMB’s review.  

We will continue to monitor the OMB’s review and provide updates on any subsequent developments.

Kelli P. Lieurance


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