Breaking News: EEOC Holds Public Hearing On EEO-1 Pay Report: Seyfarth To Testify On Behalf Of U.S. Chamber Of Commerce

Tomorrow afternoon Seyfarth Shaw's Camille Olson will testify on behalf of the U.S. Chamber of Commerce before the EEOC in public hearings on the EEOC's proposal to expand the EEO-1 report to require employers to provide pay and hours worked data for all employees. For more information on the EEOC's proposal to collect pay data, see our earlier alert here.

The impact of the new EEO-1 report is substantial; both in the millions of hours that private employers would be required to spend completing the new report and in the false positive and false negative results that the Chamber's testimony confirms are generated from the Proposed EEO-1 Report. The EEOC's Proposal, allegedly borne out of a laudable desire to ensure compliance with Title VII and the Equal Pay Act, will do no such thing. Instead, in practice, it would impose enormous burdens on employers to provide aggregated data of employees who perform dissimilar work, without regard to myriad legitimate factors that differentiate pay amongst those employees.

A full copy of the 67-page testimony, which is based, in part, on the declarations of prominent economists Dr. J. Michael DuMond (Economics, Inc.) and Dr. Ronald Edward Bird (U.S. Chamber of Commerce), is available here.

Below is a summary of the testimony that will be delivered tomorrow:

On February 1, 2016, without any prior notice to the regulated community, the EEOC published a proposed revision to the EEO-1, Employer Information Report. This data request, to which every employer with 100 or more employees and every government contractor with 50 or more employees must respond annually, has been in existence for 50 years. However, for the first time, the EEOC is proposing that employers with 100 or more employees submit data showing the W-2 wages and hours worked of all of their employees divided into 12 arbitrary pay bands, in addition to the demographic makeup of their employment rosters. To get a sense of the magnitude of the proposed revision, the existing EEO-1 report requires 128 data points. Pursuant to the changes proposed by the EEOC, covered employers will have to submit forms for each establishment, and each establishment report would consist of 3,360 data points.

The framework within which the EEOC's Proposal is analyzed is Title VII and the Paperwork Reduction Act (PRA or Act).1 The PRA requires that any request for data by a government agency meet three basic criteria: (1) the request minimizes the burden on...