Labor & Employment Law Daily OFCCP does not want any EEO-1 pay data
Monday, November 25, 2019

OFCCP does not want any EEO-1 pay data

By Pamela Wolf, J.D.

Effective immediately, the agency will not request or accept EEO-1 Component 2 pay data.

The Office of Federal Contract Compliance Programs has released its “Intention Not to Request, Accept, or Use Employer Information Report (EEO-1) Component 2 Data,” slated for publication in the Federal Register on November 25, 2019. Referencing the EEOC’s earlier notice that it does not intend to submit to the Office of Management and Budget a request to renew Component 2 pay data under the current OMB control number, and its request that Component 1 be assigned a new OMB control number, the OFCCP made clear that it will not request, accept, or use Component 2 data.

The OFCCP said that it “does not expect to find significant utility in the data given limited resources and its aggregated nature, but it will continue to receive EEO-1 Component 1 data.”

Information collection. The OFCCP and EEOC collect workforce data through the EEO-1 report. The EEOC’s legal authority to collect this data comes from Title VII, while the OFCCP’s authority derives from Executive Order 11246. The EEO-1 collects information from private employers and federal contractors about the number of employees by job category, and by sex, race, and ethnicity (Component 1). The two agencies share this information to avoid duplicative information collections and minimize the burden on employers.

Stayed and reinstated. In April 2019, a Washington, D.C. federal court, in National Women’s Law Center v. Office of Management and Budget, ordered the reinstatement of the OMB-approved 2016 revision to the EEO-1 that requires filers to additionally submit aggregated employee pay and hours worked (Component 2). The Obama-era revision had been illegally stayed by the OMB, the court concluded.

Collection not renewed. However, the EEOC, as the agency responsible for securing OMB approval of the EEO-1 data collection under the Paperwork Reduction Act, recently gave notice that it does not intend to submit to the OMB a request to renew Component 2 under the current OMB control number. It has requested that Component 1 be assigned a new OMB control number. The EEOC is contemplating the value and usefulness of the pay data collection, and to that end, heard from an invited panel of experts on November 20 (see Public hearing on EEO-1 pay data collection reveals sharp divides, November 20, 2019).

Pay data unnecessary. The OFCCP explained that it has reviewed the parameters of the Component 2 pay data collection and has determined that it does not find the data necessary “to accomplish its mission to ensure federal contractors are not engaged in unlawful pay discrimination.” The OFCCP noted that the pay data is collected in a highly aggregated format, and although it could potentially inform the OFCCP’s scheduling process for compliance evaluations, “it is too broad to provide much utility.”

The pay data is not collected at a level of detail that would permit the OFCCP to make comparisons among similarly situated employees, as required under Title VII standards that the OFCCP applies in administering and enforcing EO 11246. The OFCCP also noted that it receives up-to-date, employee-level pay data from contractors selected for compliance evaluations. This data enables the agency to identify pay disparities that may violate EO 11246 by comparing the pay of employees who are similarly situated under the contractors’ pay practices. Thus, the OFCCP does not need Component 2 pay data for that purpose.

Further, analyzing EEO-1 Component 2 pay data would put an unnecessary financial burden on the OFCCP. The agency’s limited resources do not support the enhanced scope of review of employer practices or provide the human capital and technical capacity that would be required to make use of the Component 2 data.

Will not request or accept. “Given the limited utility of the data for OFCCP’s purposes within the constraints of OFCCP’s available resources, OFCCP will not request or accept EEO-1 Component 2 data,” according to the agency’s notice. “OFCCP will continue to receive EEO-1 Component 1 data from covered contractors and subcontractors through the Joint Reporting Committee for purposes of reviewing their compliance with Executive Order 11246 and its implementing regulations, including the reporting requirements at 41 CFR 60-1.7.”

The OFCCP’s notice is effective immediately.

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