Form EEO-1 Summary Compensation Data

On March 4, 2019, a D.C. Federal District Court Vacated the review and stay described below.  Further commentary on the court’s Order follows at the end.  On August 29, 2017 the EEOC announced that it had received a Memorandum from the OMB (OIRA), which put a hold on the previous OMB authorization for the new information collection (summary compensation data) for reporting year 2017, and left the traditional Form EEO-1 reporting requirements unchanged from previous years.  The “stay” required the EEOC to file a new request for the information collection in order to reinstate it. The OMB Memorandum explains that the request for information collection does not meet the requirements for approval under the Paperwork Reduction Act (the form of data collection and the burden it would create - data file specifications required by EEOC which were not disclosed or included in its analysis in the initial request for the information collection, and substantive merits - utility of information not justifying the burden).  While the OMB determination left open the possibility of the summary compensation reporting being reinstated, because the basis for the stay included a rejection of the EEOC’s previous analysis of the utility versus the burden of the information collection, that outcome seemed unlikely in the near term. The utility versus the burden of providing compensation data on Form EEO-1 is viewed more skeptically by the current administration as well as one EEOC Commissioner (see comments of EEOC Acting Chair Victoria Lipnic).  Businesses and members of congress were critical of the new requirement and petitioned the OMB to reconsider its earlier approval under the previous administration (see February 2017 U.S. Chamber of Commerce Request for Review).  The Chamber argued that the (under) estimated costs of complying and lack of benefits demonstrated by the EEOC did not meet the standards of the Paperwork Reduction Act in order to justify approval of the data collection requirement.

One other possible outcome of this, is that the EEOC withdraws the request, which would make the lawsuit moot (though that decision would no doubt result in a similar suit by the same plaintiffs).  The Commission has been without a quorum (currently 2 of 5 Commissioners are in place, with the required third commissioner’s nomination pending in the Senate) and it’s possible the current nominee could agree with Acting Chair Lipnic that the utility does not justify the burden.