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Private employers with at least 100 employees and government contractors/first-tier subcontractors with 50 or more employees and contracts of at least $50,000 are required to file an EEO-1 report each year. This year, the EEOC established May 17, 2022 as the deadline for filing the reports for 2021. However, at the end of April, the EEOC added a frequently asked question to the instructions providing companies until June 21, 2022 to complete the process. The EEOC will send out a “notice of failure to file” to employers in its database for whom it does not have a 2021 filing, but all covered employers that have not yet certified their EEO-1 reports, whether or not they receive a failure to file notice, have until June 21st to complete and certify their reports.

Due to changes in state laws, accuracy in filing the EEO-1 reports has taken on added significance for employers. In 2021, California began requiring employers with at least 100 employees in the United States and at least one worker in California to file an annual Pay Data Report. The report collects aggregate data on employee demographics, hours worked, and compensation for each EEO-1 job category. This year, Illinois has begun requiring private employers with over 100 employees in Illinois to obtain an Equal Pay Registration Certificate (“EPRC”). Illinois is assigning covered employers a filing deadline on a rolling basis over the next two years, with all covered employers required to file no later than March 2024, and then every two years thereafter. In addition to providing compensation, EEO-1 job category, job title, and other data for each Illinois employee and certifying compliance with all relevant EEO laws, covered employers must also provide a copy of their most recently filed EEO-1 reports. While the data collected by Illinois will allow for more detailed analysis, errors in assigning employees to EEO-1 categories can raise questions about compensation disparities in both California and Illinois.

Employers should also be aware that the EEOC is considering implementing another pay data collection. On April 5, 2022, President Biden nominated Kalpana Kotagal for a seat on the EEOC. This week in the Senate hearing on her nomination, Kotagal testified that “the gender wage gap remains a pernicious problem.” Current EEOC Chair Charlotte Burrows also has noted that the EEOC commissioned the National Academy of Sciences to review its prior EEO-1 Component 2 pay data collection and is waiting for the Academy’s recommendation on how to use pay data in the future. If the EEOC does not begin a pay data collection, analysts expect that the OFCCP will move forward with one for federal contractors using their new Contractor Compliance Portal.

Accordingly, covered employers should be sure to carefully check their assignment of jobs to EEO-1 categories each year and carefully follow federal and state actions regarding potential pay data collections. Organizations should also check with their procurement/contracts departments to be sure they are not covered contractors. The OFCCP has made clear that their latest audit selection criteria will include targeting companies with active federal contracts that have not identified as contractors on the EEO-1 forms.