In 2016 the Equal Employment Opportunity Commission (“EEOC”) adopted a controversial rule requiring employers with over 100 employees to report pay data and hours worked broken down by sex and race as part of annual EEO-1 reporting obligations.  On July 2, 2019, the EEOC updated its website to provide additional information and about new pay data reporting requirements and provided sample forms. (https://eeoccomp2.norc.org/).  The website portal opened to employers to begin submissions on July 15, 2019.  The deadline for employers to submit the data is September 30, 2019. 

The EEOC is collecting data from 2017 and 2018.  However, employers do not have to choose the same time periods in 2017 and 2018 that they used when they reported other data required by the EEOC. This is a boon to employers since other “snapshot” periods may more accurately reflect their pay practices.

When reporting hours worked for exempt employees, an employer may use a 40-or 20-hour proxy since exempt employees do not often clock in and out of work. Employers cannot deviate from the 40-or 20-hour proxy numbers for exempt employees, unless it reports actual hours worked. For example, if an exempt employee actually works 35 hours per week, the employer can choose to report either the 35 hours per week or the proxy numbers.  Employers do not have to report proxy hours for all exempt employees.  Rather, employers may report actual hours for some and proxy hours for others.

Employers who are subject to the new pay data reporting requirements should consult with counsel if they have questions regarding this reporting.