EEOC Revises Contractor Pay Reporting Rule

Today, the U.S. Department of Labor’s Equal Employment Opportunity Commission (EEOC) revised an earlier proposed rule that would require that federal contractors report pay data. The original proposed rule, published in January 2016, expanded the content of the annual EEO-1 report, requiring contractors with more than 100 workers to provide pay data on race, ethnicity and gender, as we explained in our summary here. The EEOC intends these changes to address continuing pay gaps in the U.S. workforce correlated with sex, race, and ethnicity, as well as workplace discrimination, which the Commission found to contribute to the pay disparities. The proposed changes released today add a requirement to collect and report data on hours worked and pay ranges (achieved by allowing employers to cite income from W-2s, thus covering an employee’s entire year ending December 31st) . The EEOC felt that this data is necessary to enable it to account for part-time and partial-year work and to assess potential pay disparities for employees who do not work full time throughout the year. The EEOC hopes to capture in-year promotions that were not being captured by its longstanding “workforce snapshot” approach to data collection. The proposed rule also would adopt the Fair Labor Standards Act definition for “hours worked.” The EEOC is proposing to use this definition because it is familiar to employers, designed in conjunction with pay, and applies to all employers subject to the standard form EEO-1. “Hours worked” includes “all time an employee must be on duty, or on the employer’s premises or at any other prescribed place of work, from the beginning of the first principal activity of the workday to the end of the last principal activity of the workday.” In light of latest proposed revisions, the EEOC delayed the implementation date from September 30, 2017 to March 31, 2018 to accommodate the use of existing W-2 pay reports, which are calculated based on the calendar year. The EEOC has provided interested parties an additional 30-day comment period (with a deadline of August 15, 2016) to address these changes. Although the rule will be published tomorrow, July 14, 2016, it can be found in a pre-publication format at Federal Register website. Contractors and other stakeholders interested in commenting on the rule must do so by August 15, 2016. Comments on this notice must be submitted to Joseph B. Nye, Policy Analyst, Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, Washington, DC, 20503, e-mail Commenters are also encouraged to send comments to the EEOC online at (the Federal eRulemaking Portal).

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