By Annette Tyman, Randel K. Johnson, and Michael L. Childers

Seyfarth Synopsis: The U.S. District Court for the District of Columbia vacates the Office of Management and Budget’s (OMB) prior order staying the implementation of the revised EEO-1 Report which required employers to report W-2 wage information and total hours worked.

On March 4, 2019, the U.S. District for the District of Columbia issued an opinion reinstating the EEOC’s collection of pay data as part of the EEO-1 Report filing. The revised EEO-1 form was an Obama-era change that would have required employers with 100 or more employees to report W-2 wage information and total hours worked for all employees by race, ethnicity and sex within 12 proposed pay bands.

The pay data collection requirement was originally slated to go into effect on March 31, 2018, but stalled after the Office of Management and Budget (OMB) stayed the implementation of the pay data collection portions of the revised EEO-1 Report. That decision prompted a lawsuit by the National Women’s Law Center and the Labor Counsel for Latin American Advancement against the OMB and the EEOC.

In its decision, the Court concluded that OMB’s action staying the EEOC’s pay data collection tool was an “illegal” arbitrary and capricious decision that lacked a “reasoned explanation.” As a result, the Court vacated the stay and ordered that the previously approved revised EEO-1 Report that required the collection of pay data form shall be in effect. We anticipate that the Court’s decision will be appealed.

Seyfarth Shaw offered testimony on behalf of the U.S. Chamber of Commerce and submitted comments on the revised EEO-1 Report outlining the employer community’s significant concerns with the burden, benefit, and confidentiality of the proposed changes. In early 2017, the U.S. Chamber of Commerce submitted a request for a review of the initial burden estimate along with a supporting declaration and testimony regarding the burden estimates which helped prompt OMB’s decision to suspend the implementation of the pay data collection requirement.

Impact to Employers

The Court’s decision has significant implications for employers. As we have previously reported, the current EEO-1 Report filing deadline is on May 31st. That filing did not envision the collection of pay data.

We anticipate that the EEOC will issue a statement to employers regarding the stay with further direction regarding the implementation date of the pay data collection component of the EEO-1 Report in the very near future. It is highly unlikely that employers would be required to provide the required pay data during the May 31st reporting cycle.

We will continue to monitor the situation and will provide updates as they become available.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Organizational Strategy & Analytics or Labor & Employment Teams.

 

By Christine Hendrickson, Annette Tyman, Hillary Massey, and Monica Rodriquez

50 State Pay Equity Desktop Reference: What Employers Need to KnSeyfarth Synopsis: Today, April 4th, is Equal Pay Day.  In commemoration, Seyfarth’s Pay Equity Group  is introducing a 50-State Pay Equity Desktop Reference.

Pay equity may be on the minds and lips of your employees today, as today is Equal Pay Day.

Equal Pay Day originated more than 20 years ago as a public awareness event to symbolize how far into the year women must work to earn what men earned in the previous year.  While we’ve previously examined the basis of the statistic that underlies the event, there is no doubt that pay equity has become a high priority for employers, as administrative agencies and a patchwork of states have aggressively moved to address pay equity and enforcement.  What used to be a sleepy, little-discussed event has now become major news.

At Seyfarth Shaw, we are marking Equal Pay Day with the release of the first annual 50-State Pay Equity Desktop Reference.  This Desktop Reference was aimed at answering the most common questions we are asked about regarding the patchwork of different state laws that touch on pay equity, including:

  • Who is protected?
  • What type of work must be compared?
  • May employers rely on geographic location to explain pay differences?
  • What is the statute of limitations?; and
  • May employers ask about salary history?

Seyfarth Shaw at Work (SSAW) offers a more comprehensive 50-state survey, which is updated quarterly.  For additional information about the comprehensive survey, please email payequity@seyfarth.com.  The Desktop Reference also provides more information about undertaking a proactive equity audit and the lifecycle of such an audit.

Seyfarth’s Pay Equity Group leads the legal industry in fair pay analysis, thought leadership, and client advocacy.  For more than twenty years, we have partnered with our clients to proactively address these developments and minimize risk.  Seyfarth also recently testified before the Equal Employment Opportunity Commission on behalf of the U.S. Chamber of Commerce, requesting the EEOC withdraw its proposal to require employers to report data on compensation and diversity through the EEO-1 report.  For questions, contact the authors, Christine Hendrickson, Annette Tyman, Hillary Massey, and Monica Rodriquez, or your Seyfarth attorney with whom you regularly work.

Seyfarth Synopsis: Members of the Pay Equity Group are hosting an in-person discussion June 22nd to help employers stay ahead of this trend.

As you have likely gathered with the plethora of recent media coverage, pay equity presents one of the fastest moving issues in the employment law landscape.

Politicians have added the “Pay Gap” to their arsenal of campaign buzz words.  The EEOC has proposed a major revision to the Employer Information Report requiring all employers with more than 100 employees to annually submit compensation data to the EEOC beginning in 2017.  State legislatures are busy cranking out new and more stringent pay equity laws.  The plaintiffs’ employment bar and state Attorneys’ General are taking steps to expand the scope of existing laws.

Employers that stay ahead of this trend will be in the best position to avoid litigation and enforcement actions.  And Seyfarth’s Pay Equity Group (PEG) is on top of these issues.  Members of Seyfarth’s PEG are providing practical discussions on the pay equity landscape in-person across several of our offices as well as a webinar, which was attended by a record number of employers.  Click here to listen to a recording of this webinar.  If you are able to join us in Chicago on June 22nd, our attorneys, David Baffa, Annette Tyman, and Christine Hendrickson, will be discussing:

  • Recently passed and pending legislation that expands employers’ obligations regarding equal pay for equal (or comparable) work
  • The EEOC’s proposed EEO-1 report
  • Best practices for conducting a pay equity audit and avoiding pay equity claims

For more information or to register, please click here.

If you have questions regarding Pay Equity, please contact a member of the Seyfarth Pay Equity team.