EEOC Announces Approval of Revised EEO-1
September 30, 2016
On September 29, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) announced approval of its revised Employer Information or EEO-1 report, which employers must file with the EEOC annually to report demographic information about their workforces. On March 31, 2018, private employers, including federal contractors, with 100 or more employees must include summary compensation and hours-worked data in their annual EEO-1 report. Specifically, covered employers will be required to report employees’W-2 earnings and hours-worked data, broken down by gender, race, ethnicity, and by 12 pay bands in each of the 10 EEO job categories.
The new reporting requirements do not affect employers’ 2016 EEO-1 report due on September 30, 2016. However, beginning in 2017, the annual filing deadline will be pushed back from September 30 of the reporting year, to March 31 of the following year. Accordingly, the first time employers’ must file the EEO-1 reports containing the new data is by March 31, 2018.
To accommodate the EEO-1’s new filing schedule, employers’ annual EEO-1 “workforce snapshot” period (the time period during which employers survey their employees) will shift from the third quarter to the final quarter of the calendar year, beginning with the EEO-1 report due on March 31, 2018.
Since last February when the EEOC published its initial proposal to collect this additional data, the employer community has repeatedly voiced strong objections and concerns regarding the use of W-2 data; the ability to accurately track employees’ hours-worked; the utility of the information being collected; the increased burden and costs that were not accurately considered in the EEOC’s proposal; and insufficient safeguards to protect the privacy of the data. Unfortunately, these genuine concerns largely have gone unheeded. Aside from changing the EEO-1 reporting schedule so that employers will not have to issue an additional W-2, in the final EEO-1 the EEOC made no other substantive changes from the agency’s initial proposal.
Although the EEOC has posted an assurance on its website that the agency “maintains robust cybersecurity and privacy programs,” and will require employers to choose a new password to access their next report, these warning will do little to allay employer concerns regarding the security of their data.
For federal contractors, it is important to note that EEOC shares EEO-1 data with the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). The EEOC is prohibited by Title VII from releasing any individual EEO-1 data, with EEOC employees subject to criminal penalties if they are involved in such a release. However, the EEO-1 Report data shared with OFCCP has more limited protections under the exemptions to the Freedom of Information Act.
Next Steps
The EEOC will be offering webinars on October 20 and 26 and providing technical assistance through email and the agency’s hotline to help businesses comply with the new requirements.
Additionally, employers should consider the following steps in 2017 as they prepare for the new EEO-1 reporting requirements:
- Assemble a team with the necessary subject matter expertise that typically includes legal, HR, compensation, timekeeping, payroll, and other affected areas. The assessment team should evaluate the company’s current capabilities promptly, so that there is sufficient time to undertake necessary updates and changes to systems and reporting capabilities.
- Review the payroll and HRIS systems to determine where the earnings and hours-worked data are maintained, and whether the new, expanded data requirements can be met from the current systems. Typically, modifications may be required in order to be able to collect hours worked data.
- If the company uses a separate system for payroll, then consult with the company’s IT representatives to complete any necessary updates of their HRIS systems to accommodate and integrate the additional data.
- Employers who rely upon outside vendors to generate W-2 forms, and do not maintain the information internally (specifically the individual employee earnings reported in Box 1) will need to review their contracts and confer with their vendor to determine the most efficient way to import the W-2 data to the system(s) that are used for preparing the new EEO-1 report.
- Determine whether the company will use the permitted default entries of 40 hours (full time) and 20 hours (part-time) for exempt employees or will provide exempt employees’ actual hours, either by tracking hours worked or determining whether the employees’ work hours are available from other records, e.g., log-ins, federal contracting billing reports, etc..
- Employers should ensure that all reasonable steps are taken to protect the confidentiality of their data once it is in the agencies hands.
Please contact either the FortneyScott attorney with whom you work or Leslie Silverman, Esquire from FortneyScott for additional information or advice on complying with the new EEO-1 reporting obligations.
There have been significant changes at the Equal Employment Opportunity Commission (EEOC) during President Trump’s first four weeks in office, as part of the widespread changes at federal agencies. To learn the latest EEOC developments, join FortneyScott’s next webinar on February 25, from 12 noon to 1:00pm (Eastern) as the latest in FortneyScott’s ongoing series of webinar s and podcasts that provide employers with the latest information on the key Trump Administration changes. Register here . In this webinar , FortneyScott’s highly experienced attorneys, including David Fortney, Leslie Silverman (former Vice Chair of EEOC), and Nita Beecher, will discuss the practical implications for employers due to the latest changes at EEOC, including: Impact of President Trump’s unprecedented personnel actions resulting in a lack of a quorum; Response of Acting Chair Andrea Lucas to President Trump’s Executive Orders; Likely focus of the EEOC under the Trump Administration; and, Impact on EEOC of the Trump Administration’s efforts to secure reversal of the Supreme Court’s seminal Humphrey’s Estate decision. Click here to register for this important and timely free webinar on Tuesday, February 25, 2025, from 12 noon to 1:00pm (Eastern).
There have been significant changes at the Equal Employment Opportunity Commission (EEOC) during President Trump’s first four weeks in office, as part of the widespread changes at federal agencies. To learn the latest EEOC developments, join FortneyScott’s next webinar on February 25, from 12 noon to 1:00pm (Eastern) as the latest in FortneyScott’s ongoing series of webinar s and podcasts that provide employers with the latest information on the key Trump Administration changes. Register here . In this webinar , FortneyScott’s highly experienced attorneys, including David Fortney, Leslie Silverman (former Vice Chair of EEOC), and Nita Beecher, will discuss the practical implications for employers due to the latest changes at EEOC, including: Impact of President Trump’s unprecedented personnel actions resulting in a lack of a quorum; Response of Acting Chair Andrea Lucas to President Trump’s Executive Orders; Likely focus of the EEOC under the Trump Administration; and, Impact on EEOC of the Trump Administration’s efforts to secure reversal of the Supreme Court’s seminal Humphrey’s Estate decision. Click here to register for this important and timely free webinar on Tuesday, February 25, 2025, from 12 noon to 1:00pm (Eastern).
The False Claims Act and "Illegal DEI": What Federal Contractors Need to Know. Join Nita Beecher, Sarah Mugmon, and Adriana Joens to discuss the following questions.
On February 5, 2025, six Plaintiffs (the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO); The American Federation of Government Employees (AFGE); The American Federation of State, County & Municipal Employees, AFL-CIO (AFSCME); Service Employees International Union, AFL-CIO (SEIU); The Communications Workers of America, AFL-CIO (CWA); and Economic Policy Institute (EPI) filed a complaint in the U.S. District Court for the District of Columbia against the Department of Labor (DOL), Labor’s Acting Secretary Vince Micone, the U.S. DOGE Service (USDS), and the U.S. DOGE Service Temporary Organization. The complaint seeks declaratory and injunctive relief to prevent the “Department of Government Efficiency” (DOGE) from accessing DOL’s information systems and the sensitive data therein concerning both federal employees and private citizens. The complaint explains how DOGE, sanctioned only by Executive Order 14158 (Establishing the President’s Department of Government Efficiency), functions as a network of DOGE-related offices, teams, and roles overseen by Elon Musk within the Executive Office of the President and implanted within each federal agency. The complaint describes DOGE’s pattern as overtaking federal agencies without statutory authority, seizing their information systems, threatening career civil servants’ resistance with adverse employment action, and unilaterally dismantling or restructuring the agencies. As DOL is DOGE’s next posited target, plaintiffs seek to prevent DOGE from unlawfully accessing DOL’s sensitive information systems, including such systems maintained and managed by the Federal Employees’ Compensation Act Claims Administration, the Wage and Hour Division, the Occupational Safety and Health Administration, and the Bureau of Labor Statistics. These systems include medical information, financial information, and personnel information, as well as the identities of anonymous whistleblowers. Plaintiffs allege that DOGE’s actions are unconstitutional because DOGE lacks lawful authority to either direct agency actions or access statutorily restricted government systems. Rather, DOGE’s function is limited to advising and assisting the President. Plaintiff’s claims mostly arise under the Administrative Procedure Act, which protects individuals harmed by “arbitrary and capricious” final agency actions and provides court intervention when such harm occurs. Specifically, Plaintiffs accuse DOL of unlawfully threatening federal employees with termination, violating information privacy statutes by instructing and disclosing confidential and private records, creating new rules without meeting “notice and comment” requirements, and abusing its discretion. As relief, Plaintiffs asked the Court to declare DOGE’s access to DOL’s systems as unlawful. Plaintiffs also request a Court order forbidding DOL from granting DOGE access to DOL’s systems, taking adverse personnel action against employees who refuse providing DOGE with unlawful access, and providing non-public DOL information to any person with a conflict of interest. This is the first complaint filed challenging DOGE’s access to sensitive government information systems.
On February 3, 2025, four plaintiffs (the National Association of Diverse Officers in Higher Education, the American Association of University Professors, the Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore, Maryland) jointly filed a complaint challenging EO 14151 (“Ending Radical Government DEI Programs and Preferencing”) and EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”). The complaint does not challenge the revocation of 11246 yet addresses the legality of §§3-4 of EO 14173. The complaint alleges that EO 14173 is unconstitutional on various grounds and seeks a court order overturning the EO. With respect to EO 14173, the complaint alleges that §3 violates the Free Speech Clause of the First Amendment. By threatening FCA enforcement against federal contractors and grantees who certify that they do not operate undefined “programs promoting DEI,” plaintiffs allege that §3 chills the expression of or participation in diversity, equity, inclusion, and accessibility initiatives. Plaintiffs also alleges that §3 violates separation of powers because it empowers the executive branch, rather than Congress, to control federal funding based on whether contractors or grantees operate “programs promoting DEI.” As for §4 of EO 14173, the complaint alleges that it likewise violates the First Amendment’s Free Speech Clause by threatening civil investigation and “deterrence” against anyone who expresses support for undefined “illegal DEI.” Furthermore, because §4 is vague with respect to terms (e.g., “illegal DEIA and DEIA policies”) and the criteria for selecting which organizations are subject to investigation or enforcement actions, plaintiffs also allege §4 violates the Fifth Amendment’s Due Process Clause. We anticipate additional plaintiffs filing similar lawsuits related to EO 14173 are forthcoming.
Join David Fortney, Elizabeth Bradley, and Nita Beecher as they discuss the practical implications of how employers respond to the new prohibitions on “illegal DEI,” including:
There have been significant changes at the Equal Employment Opportunity Commission (EEOC) during President Trump’s first four weeks in office, as part of the widespread changes at federal agencies. To learn the latest EEOC developments, join FortneyScott’s next webinar on February 25, from 12 noon to 1:00pm (Eastern) as the latest in FortneyScott’s ongoing series of webinar s and podcasts that provide employers with the latest information on the key Trump Administration changes. Register here . In this webinar , FortneyScott’s highly experienced attorneys, including David Fortney, Leslie Silverman (former Vice Chair of EEOC), and Nita Beecher, will discuss the practical implications for employers due to the latest changes at EEOC, including: Impact of President Trump’s unprecedented personnel actions resulting in a lack of a quorum; Response of Acting Chair Andrea Lucas to President Trump’s Executive Orders; Likely focus of the EEOC under the Trump Administration; and, Impact on EEOC of the Trump Administration’s efforts to secure reversal of the Supreme Court’s seminal Humphrey’s Estate decision. Click here to register for this important and timely free webinar on Tuesday, February 25, 2025, from 12 noon to 1:00pm (Eastern).
There have been significant changes at the Equal Employment Opportunity Commission (EEOC) during President Trump’s first four weeks in office, as part of the widespread changes at federal agencies. To learn the latest EEOC developments, join FortneyScott’s next webinar on February 25, from 12 noon to 1:00pm (Eastern) as the latest in FortneyScott’s ongoing series of webinar s and podcasts that provide employers with the latest information on the key Trump Administration changes. Register here . In this webinar , FortneyScott’s highly experienced attorneys, including David Fortney, Leslie Silverman (former Vice Chair of EEOC), and Nita Beecher, will discuss the practical implications for employers due to the latest changes at EEOC, including: Impact of President Trump’s unprecedented personnel actions resulting in a lack of a quorum; Response of Acting Chair Andrea Lucas to President Trump’s Executive Orders; Likely focus of the EEOC under the Trump Administration; and, Impact on EEOC of the Trump Administration’s efforts to secure reversal of the Supreme Court’s seminal Humphrey’s Estate decision. Click here to register for this important and timely free webinar on Tuesday, February 25, 2025, from 12 noon to 1:00pm (Eastern).
The False Claims Act and "Illegal DEI": What Federal Contractors Need to Know. Join Nita Beecher, Sarah Mugmon, and Adriana Joens to discuss the following questions.
On February 5, 2025, six Plaintiffs (the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO); The American Federation of Government Employees (AFGE); The American Federation of State, County & Municipal Employees, AFL-CIO (AFSCME); Service Employees International Union, AFL-CIO (SEIU); The Communications Workers of America, AFL-CIO (CWA); and Economic Policy Institute (EPI) filed a complaint in the U.S. District Court for the District of Columbia against the Department of Labor (DOL), Labor’s Acting Secretary Vince Micone, the U.S. DOGE Service (USDS), and the U.S. DOGE Service Temporary Organization. The complaint seeks declaratory and injunctive relief to prevent the “Department of Government Efficiency” (DOGE) from accessing DOL’s information systems and the sensitive data therein concerning both federal employees and private citizens. The complaint explains how DOGE, sanctioned only by Executive Order 14158 (Establishing the President’s Department of Government Efficiency), functions as a network of DOGE-related offices, teams, and roles overseen by Elon Musk within the Executive Office of the President and implanted within each federal agency. The complaint describes DOGE’s pattern as overtaking federal agencies without statutory authority, seizing their information systems, threatening career civil servants’ resistance with adverse employment action, and unilaterally dismantling or restructuring the agencies. As DOL is DOGE’s next posited target, plaintiffs seek to prevent DOGE from unlawfully accessing DOL’s sensitive information systems, including such systems maintained and managed by the Federal Employees’ Compensation Act Claims Administration, the Wage and Hour Division, the Occupational Safety and Health Administration, and the Bureau of Labor Statistics. These systems include medical information, financial information, and personnel information, as well as the identities of anonymous whistleblowers. Plaintiffs allege that DOGE’s actions are unconstitutional because DOGE lacks lawful authority to either direct agency actions or access statutorily restricted government systems. Rather, DOGE’s function is limited to advising and assisting the President. Plaintiff’s claims mostly arise under the Administrative Procedure Act, which protects individuals harmed by “arbitrary and capricious” final agency actions and provides court intervention when such harm occurs. Specifically, Plaintiffs accuse DOL of unlawfully threatening federal employees with termination, violating information privacy statutes by instructing and disclosing confidential and private records, creating new rules without meeting “notice and comment” requirements, and abusing its discretion. As relief, Plaintiffs asked the Court to declare DOGE’s access to DOL’s systems as unlawful. Plaintiffs also request a Court order forbidding DOL from granting DOGE access to DOL’s systems, taking adverse personnel action against employees who refuse providing DOGE with unlawful access, and providing non-public DOL information to any person with a conflict of interest. This is the first complaint filed challenging DOGE’s access to sensitive government information systems.
On February 3, 2025, four plaintiffs (the National Association of Diverse Officers in Higher Education, the American Association of University Professors, the Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore, Maryland) jointly filed a complaint challenging EO 14151 (“Ending Radical Government DEI Programs and Preferencing”) and EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”). The complaint does not challenge the revocation of 11246 yet addresses the legality of §§3-4 of EO 14173. The complaint alleges that EO 14173 is unconstitutional on various grounds and seeks a court order overturning the EO. With respect to EO 14173, the complaint alleges that §3 violates the Free Speech Clause of the First Amendment. By threatening FCA enforcement against federal contractors and grantees who certify that they do not operate undefined “programs promoting DEI,” plaintiffs allege that §3 chills the expression of or participation in diversity, equity, inclusion, and accessibility initiatives. Plaintiffs also alleges that §3 violates separation of powers because it empowers the executive branch, rather than Congress, to control federal funding based on whether contractors or grantees operate “programs promoting DEI.” As for §4 of EO 14173, the complaint alleges that it likewise violates the First Amendment’s Free Speech Clause by threatening civil investigation and “deterrence” against anyone who expresses support for undefined “illegal DEI.” Furthermore, because §4 is vague with respect to terms (e.g., “illegal DEIA and DEIA policies”) and the criteria for selecting which organizations are subject to investigation or enforcement actions, plaintiffs also allege §4 violates the Fifth Amendment’s Due Process Clause. We anticipate additional plaintiffs filing similar lawsuits related to EO 14173 are forthcoming.
Join David Fortney, Elizabeth Bradley, and Nita Beecher as they discuss the practical implications of how employers respond to the new prohibitions on “illegal DEI,” including:
Yesterday, Fortney & Scott launched the first in a series of webinars to provide employers with valuable information about President Trump’s actions that significantly impact the workplace.
FortneyScott presents one of a series of webinars regarding Trump's Executives Orders, specifically, the revocation of EO 11246.
In an anticipated move, the Department of Labor halted enforcement of anti-discrimination laws and affirmative action programs (AAPs) for federal contractors, following an Order from the Acting Secretary of Labor, Vincent Micone.
Former President Donald Trump has revoked a nearly 60-year-old executive order, originally signed by President Lyndon Johnson, that prohibited government contractors.
