This article was originally written by John Mattiace and posted to Kelley Drye’s Labor Days Blog.

The Equal Opportunity Employment Commission (“EEOC”) has always required employers with 50 or more employees to submit annual reports, known as “EEO-1” submissions, to the Commission. These report are required to include data concerning the number of employees the company employs based on gender, race, and ethnicity. At two pages long, they were relatively straightforward and the data fairly easy to submit. The requirement has yo-yoed back and forth from being much more onerous over the past several years, with recent developments casting a shadow of uncertainty over the current EEO-1 obligations.

Increased Reporting Requirements

In September 2016, the EEOC expanded the reporting obligation to include detailed wage and hour information broken down by gender, race, and ethnicity within 12 different pay bands for 10 different job classifications.  This drastically increased the amount of information that employers needed to collect and report. If it wasn’t already, the EEO-1 form became an unequivocal burden. The new requirements were submitted to the federal Office of Management and Budget (“OMB”) and approved for employers to begin complying with in 2017.

New Requirements Called Off and Then Reinstated

Things changed again when the Trump administration took over. In August 2017, the OMB issued a stay of the new wage and hour reporting requirements, citing, among other things, that it was overly burdensome and “[did] not adequately address privacy and confidentiality issues.”

In November 2017, several advocacy groups sued the administration and claimed that the OMB’s decision violated the federal Paperwork Reduction Act (“PRA”), and Administrative Procedures Act (“APA”), and asked that the OMB’s stay be lifted.

On March 4, 2019, the pendulum swung back when the U.S. District Court for the District of Columbia granted the plaintiffs summary judgment and held that the OMB’s stay was not reasonable. This means the requirements would need to be reinstated.

More Uncertainty

Although the deadline to comply with EEO-1 requirements has been extended (because of the recent government shutdown) from March 31, 2019 to May 31, 2019, the EEO-1 submission portal still needs to be updated to allow for the submission of the new reporting data and there is no indication when that will be done. Thus, we expect a further extension of the deadline at some point. It is also very likely that the Trump administration will appeal the District Court’s decision so there is the potential for a swing back to the days when the new data was not required.

We will continue to monitor the developments for any updates concerning employers’ responsibility to comply with these new changes to the EEO-1 reporting law.