EEOC Proposes Rule Seeking Additional Pay Data from Employers

The Equal Employment Opportunity Commission (EEOC) announced last Friday its proposal of a revised Employer Information Report (EEO-1) that will collect pay data from federal contractors and other employers with more than 100 employees. The notice of proposed changes, which was released Monday, February 1st, is the result of a joint effort by the EEOC and the Obama administration and was announced on the seventh anniversary of the signing of the Lilly Ledbetter Fair Pay Act.

According to the EEOC, the new data will be used by the EEOC and the Office of Federal Contract Compliance Programs (OFCCP) to “more effectively focus investigations, assess complaints of discrimination, and identify existing pay disparities that may warrant further examination.” The EEOC plans to publish that aggregate data, but will not reveal any particular employer’s data. It has noted its hope that the data will “help employers evaluate their own pay practices so that they can prevent pay discrimination in their workplaces.”

Whom does the proposed “pay data” revision affect?

This proposed revision affects employers—private industry whether it is or is not a federal contractor—that have 100 or more employees. Federal contractors with 50 to 99 employees will continue to submit only the information that is currently required.

When would the proposed revision go into effect?

Currently, the EEOC is accepting comments from the public on the proposed changes until April 1, 2016. Comments can be submitted online at; can be sent to Bernadette Wilson, Acting Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street NE., Washington DC 20507; or, if totaling six pages or fewer, can be faxed to (202) 663-4114.

The EEOC has announced its intention to finalize the proposal by September 2016. The revision, if finalized, would go into effect beginning with the September 2017 report; thus, your 2016 reporting requirements will remain unchanged.

What additional information would be required?

Currently, the EEO-1 collects information on the number of individuals an employer employs by ten job categories, seven race and ethnicity categories, and sex.

The proposed revised report would collect data on employees’ W-2 earnings and hours worked. Specifically, employers will report the number of employees in each job category, race and ethnicity category, and sex who fall into each of twelve pay bands. Furthermore, employers will report the total number of hours worked by the employees included in each pay band. The EEOC is seeking employer input with respect to how to report hours worked for salaried employees, but has stated that it is “not proposing to require an employer to begin collecting additional data on actual hours worked for salaried workers, to the extent that the employer does not currently maintain such information.”

The proposed pay bands are:

1: $19,239 and under;

2: $19,240 to $24,439;

3: $24,440 to $30,679;

4: $30,680 to $38,999;

5: $39,000 to $49,919;

6: $49,920 to $62,919;

7: $62,920 to $80,079;

8: $80,080 to $101,919;

9: $101,920 to $128,959;

10: $128,960 to $163,799;

11: $163,800 to $207,999;

12: $208,000 and over.

In addition, beginning in 2017, all filers will be required to submit the proposed EEO-1 report electronically.

Can I review the proposed new form?

The proposed EEO-1 form to collect compensation data can be found here.

Pay Transparency Final Rule

This “pay data” announcement comes on the heels of the Department of Labor’s separate January 11, 2016 issuance of a Final Rule implementing Executive Order 13665—otherwise known as the “Pay Transparency Rule.” This Rule, which applies to covered federal contractors, prohibits discipline of employees for disclosure of certain salary information, adds a posting requirement and required insertions into federal contracts and employee handbooks regarding the Rule, and provides possible defenses for employers regarding discipline administered. More information concerning this Rule can be found here.

Maynard Nexsen , PC will continue to update its clients on the developments to and implementation of this proposed rule over the next twenty months prior to its proposed implementation. We also offer assistance in preparing EEO-1 reports for submission to the EEOC and OFCCP. For more information about this proposed rule, our EEO-1 preparation services, the recently finalized Pay Transparency Rule, or any other employment-related question, please contact David Smith at or any of the other Labor and Employment attorneys listed on our website.


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