United States

    Gender pay gap rules in detail

    Employers in the US with 100 or more employees and government contractors with 50 or more employees are required to file an 'EEO-1' report with the Equal Employment Opportunity Commission ('EEOC'), which discloses data regarding race and gender of employees by job classification. Recently, a court ruling required employers to also report race and gender data broken down by 12 different pay bands and hours worked. However, an appeal is expected, and the EEOC has not yet updated its database to permit filing of the revised requirements. Updates and filing requirements may be found at: https://www.eeoc.gov/employers/eeo1survey/index.cfm 

    Penalties for non-compliance with EEO-1 reporting data include debarment for government contractors and the EEOC may seek a federal court order compelling compliance. Also, under United States Code, Title 18, section 1001, false statements in EEO-1 reports may result in fines or imprisonment. While potentially expensive to litigate, there are no civil penalties or fees for a failure to file an EEO-1 report for private employers.

    The results of the EEO-1 report itself do not give employees or employee representatives grounds for a claim because the results of the report are, at least initially, confidential. The EEOC will release charge files (including EEO-1s submitted with position statements) to charging parties (claimants). Further, charging parties and their lawyers can disclose EEO-1 reports during litigation. In civil litigation, a plaintiff's lawyer can request EEO-1 reports during discovery and can use them. 

    On 3 April 2019, the EEOC requested court approval to extend the deadline for reporting pay data to 30 September 2019 (from the previous 31 May 2019 deadline), citing the need for additional time to accommodate 'significant practical challenges' in collecting this information. 

    On 3 May 2019, the EEOC confirmed that employers will be required to submit the expanded pay data set for the years 2017 and 2018 by 30 September 2019. It is expected to post detailed instructions for employers on its website in June and open the filing portal in mid-July.

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    Author: FordHarrison

    Date: May 2019


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