Notice2021-18924
Rescission of Notice of Intention Not To Request, Accept or Use Employer Information Report (EEO-1) Component 2 Data, November 25, 2019
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 2, 2021
Issuing agencies
Labor DepartmentFederal Contract Compliance Programs Office
Abstract
The U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC) collect workforce data through the Employer Information Report (EEO-1) under their Joint Reporting Committee. OFCCP is rescinding its previously issued notice, which stated that OFCCP did not intend to request, accept, or use EEO-1 Component 2 data. The agency has determined that it was premature to issue a notice stating OFCCP did not expect to find significant utility in the data.
Full Text
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<title>Federal Register, Volume 86 Issue 168 (Thursday, September 2, 2021)</title>
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[Federal Register Volume 86, Number 168 (Thursday, September 2, 2021)]
[Notices]
[Pages 49354-49355]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-18924]
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DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
Rescission of Notice of Intention Not To Request, Accept or Use
Employer Information Report (EEO-1) Component 2 Data, November 25, 2019
AGENCY: Office of Federal Contract Compliance Programs, Labor.
ACTION: Notice.
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SUMMARY: The U.S. Department of Labor's Office of Federal Contract
Compliance Programs (OFCCP) and the Equal Employment Opportunity
Commission (EEOC) collect workforce data through the Employer
Information Report (EEO-1) under their Joint Reporting Committee. OFCCP
is rescinding its previously issued notice, which stated that OFCCP did
not intend to request, accept, or use EEO-1 Component 2 data. The
agency has determined that it was premature to issue a notice stating
OFCCP did not expect to find significant utility in the data.
DATES: This action is effective immediately.
FOR FURTHER INFORMATION CONTACT: Tina T. Williams, Director, Division
of Policy and Program Development, Office of Federal Contract
Compliance Programs, 200 Constitution Avenue NW, Room C-3325,
Washington, DC 20210. Telephone: (202) 693-0103 (voice) or (202) 693-
1337 (TTY).
SUPPLEMENTARY INFORMATION:
Background
OFCCP administers and enforces Executive Order 11246, as amended
(E.O. 11246), which applies to Federal contractors and subcontractors.
E.O. 11246 prohibits employment discrimination and requires affirmative
action to ensure equal employment opportunity regardless of race,
color, religion, sex, sexual orientation, gender identity, or national
origin. It also prohibits Federal contractors and subcontractors from
discriminating against applicants and employees for inquiring about,
discussing, or disclosing information about their pay or the pay of
their co-workers, subject to certain limitations.
OFCCP and the EEOC have separate legal authority to collect EEO-1
data, and they coordinate collection to promote efficiency through
their Joint Reporting Committee. The EEOC's legal authority to collect
EEO-1 data from private employers derives from Title VII of the Civil
Rights Act, and OFCCP's authority to collect data from certain Federal
contractors derives from E.O. 11246 and its implementing
regulations.\1\ The EEO-1 data collection is a mandatory annual data
collection that requires all private sector employers that are covered
by Title VII and have 100 or more employees, and Federal contractors
with 50 or more employees meeting certain criteria, to submit
demographic workforce data, including data by sex, race, ethnicity, and
job categories (Component 1) (Office of Management and Budget (OMB)
Control No. 3046-0049). The EEO-1 Component 1 data has been shared
between the two agencies for decades to avoid duplicative information
collections and to minimize the burden on employers.
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\1\ See 42 U.S.C. 2000e-8(c); 29 CFR 1602.7; 41 CFR 60-1.7.
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OFCCP had previously expressed interest in collecting summary
compensation data for the purpose of informing its compliance and
enforcement efforts. On August 8, 2014, OFCCP published a notice of
proposed rulemaking in the Federal Register to amend the regulations
that implement E.O. 11246 by adding a requirement that certain Federal
contractors and subcontractors supplement their EEO-1 Report with
summary information on compensation paid to employees, as contained in
the Form W-2, Wage and Tax Statement, by sex, race, ethnicity, and
specified job categories, as well as other relevant data points such as
hours worked and the number of employees.\2\ The purpose of the
proposed collection was to enable OFCCP to more effectively focus its
enforcement resources to better identify potential pay inequities for
further evaluations. Public comments submitted to OFCCP on the proposal
argued for, among other things, improving interagency coordination and
decreasing employer burden for reporting compensation data by using the
EEO-1 data collection, rather than conducting a new OFCCP data
collection. Ultimately, OFCCP determined that it would collaborate with
the EEOC to collect compensation data as part of the EEO-1 filing
rather than proceed with publishing a final rule.
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\2\ See 79 FR 46561 (Aug. 8, 2014).
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On July 14, 2016, the EEOC published a 30-day notice in the Federal
Register to obtain a three-year approval from OMB for the continued
collection of Component 1 demographic data, as well as a new collection
of summary compensation data, referred to as ``Component 2'' EEO-1
data.\3\ The notice stated that, although the EEOC is responsible for
compliance with the Paperwork Reduction Act of 1995, the EEO-1 report
is a joint data collection to meet the enforcement needs of both the
EEOC and OFCCP while avoiding duplication. The Component 2 collection
included aggregated data on employee pay and hours worked. On September
29, 2016, OMB approved the EEO-1 Components 1 and 2 information
collection for calendar years 2017 and 2018.
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\3\ See 81 FR 45479 (July 14, 2016).
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On August 29, 2017, OMB stayed the EEOC's collection of Component 2
data, and the EEOC proceeded to collect only Component 1 data.
Subsequently, the EEOC issued a Federal Register notice on September
15, 2017, suspending the Component 2 data collection.\4\ In response to
a lawsuit challenging OMB and the EEOC's actions, on March 4, 2019, the
United States District Court for the District of Columbia vacated OMB's
stay of the Component 2 data collection and ordered that the previous
approval of the EEO-1 Component 2 collection was in effect.\5\ The
court further ordered the EEOC to collect the Component 2 data for
calendar years 2017 and 2018 by September 30, 2019. On May 3, 2019, the
EEOC published a Federal Register notice announcing the
[[Page 49355]]
immediate reinstatement of the collection of 2017 and 2018 Component 2
data from EEO-1 filers.\6\ A February 6, 2020 Joint Status Report to
the court stated that more than 89% of all eligible employers had
submitted Component 2 data, and on February 10, 2020, the United States
District Court for the District of Columbia deemed the collection
complete.
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\4\ See 82 FR 43362 (Sept. 15, 2017).
\5\ National Women's Law Center, et al. v. Office of Management
and Budget, et al., 358 F. Supp. 3d 66 (D.D.C. 2019).
\6\ See 84 FR 18974 (May 3, 2019).
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On September 12, 2019, the EEOC published a 60-day notice in the
Federal Register announcing its intention not to seek renewal of the
OMB approval for the collection of Component 2 data.\7\ The EEOC
concluded that, it should consider information from the Component 2
data collection before deciding whether to pursue another pay data
collection consistent with the Paperwork Reduction Act.
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\7\ See 84 FR 48138 (Sept. 12, 2019).
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Subsequently, on November 25, 2019, OFCCP published a notice in the
Federal Register indicating that the agency would not ``request,
accept, or use Component 2 data, as it does not expect to find
significant utility in the data given limited resources and [the
data's] aggregated nature.'' \8\ While the notice conceded that ``the
data could potentially inform OFCCP's scheduling process for compliance
evaluations,'' OFCCP concluded that the Component 2 data was too broad
and not collected at a level of detail that would enable the agency to
make comparisons among similarly situated employees as required by the
``Title VII standards that OFCCP applies in administering and enforcing
[E.O.] 11246'' without conducting additional analysis that would put an
unnecessary financial burden on the agency.\9\
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\8\ See 84 FR 64932 (Nov. 25, 2019).
\9\ 84 FR 64993.
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On March 23, 2020, the EEOC published the 30-day notice indicating
that it would not seek an extension to continue Component 2 data
collection.\10\
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\10\ See 85 FR 16340 (March 23, 2020).
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Accepting Aggregated Component 2 Data from the EEOC
OFCCP issued its November 2019 notice stating the agency would not
request, accept, or use Component 2 data even before the United States
District Court for the District of Columbia deemed the collection of
2017 and 2018 Component 2 data complete in February 2020. At that time,
OFCCP had little information about the response rate of the collection,
how the data was submitted and assembled, or the completeness of the
data. Nor did the agency have the opportunity to review and analyze the
data.
Upon further consideration, OFCCP believes the position taken by
the agency in the November 2019 notice was premature and counter to the
agency's interests in ensuring pay equity. As detailed below, there are
substantial reasons to believe that the Component 2 data could be
useful to OFCCP's enforcement. Given the effort expended by employers
to submit the data and resources devoted by the EEOC and OFCCP in the
development of the collection, OFCCP believes it would be valuable to
analyze this data to assess its utility for OFCCP's enforcement
efforts.
OFCCP intends to devote further agency resources to evaluate the
data's utility because the joint collection and analysis of
compensation data could improve OFCCP's ability to efficiently and
effectively investigate potential pay discrimination.\11\ Also,
analyzing compensation data in conjunction with other available
information, such as labor market survey data, could help OFCCP
identify neutral criteria to select contractors for compliance
evaluations. Thus, OFCCP is rescinding its November 25, 2019 notice.
OFCCP plans to analyze the Component 2 data collection to assess its
utility for providing insight into pay disparities across industries
and occupations and strengthen Federal efforts to combat pay
discrimination.
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\11\ As stated in the EEOC's July 14, 2016, 30-day notice, EEOC
concluded that ``implementing the proposed EEO-1 pay data collection
will improve the EEOC's ability to efficiently and effectively
structure its investigation of pay discrimination charges.'' See 81
FR 45479, 45483 (July 14, 2016). OFCCP, too, believes the
compensation data collection may be useful for its enforcement
efforts.
Tina T. Williams,
Director, Division of Policy and Program Development, Office of Federal
Contract Compliance Programs.
[FR Doc. 2021-18924 Filed 9-1-21; 8:45 am]
BILLING CODE 4510-CM-P
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</html>Indexed from Federal Register on September 2, 2021.
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