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.

 

Seyfarth Synopsis: Seyfarth Shaw’s Pay Equity and International Law Groups celebrated International Women’s Day a day early with a webinar on Wednesday, March 7, 2018 entitled “Pay Equity Around the Globe”.

Tessa Cranfield, Marjorie Culver, and Christine Hendrickson had a crowd for the webinar on global pay equity but in case you missed it, here are the slides from the webinar. Some of the highlights of the webinar included:

  • A discussion of the key trends in global pay equity, which included strengthened anti-discrimination laws, pay transparency, and pay reporting requirements;
  • An overview of key pay equity laws in Europe (focusing on Iceland, Germany, France, and the United Kingdom) and APAC and LATAM (focusing on Australia, China, India, and Brazil); and
  • Practical tips on how to undertake global pay equity analyses, focusing on the “who”, “what”, and “how” to conduct these reviews.

If you are considering undertaking a global pay analysis — and is there a better way to celebrate International Women’s Day? — reach out to Seyfarth’s Pay Equity Group and they will be happy to guide you through this process.

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.