Proposed Rule2024-23327
Recordkeeping and Reporting Requirements Under Title VII, the ADA, GINA, and the PWFA
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Published
October 11, 2024
Issuing agencies
Equal Employment Opportunity Commission
Abstract
The Equal Employment Opportunity Commission ("EEOC" or "Commission") is proposing to amend its regulations regarding recordkeeping and reporting requirements to delegate authority for making determinations on hardship exemption applications, to set forth the procedure for applying for exemptions, and to provide a non- exhaustive list of criteria for considering exemption applications. These actions are necessary for administrative efficiency and transparency.
Full Text
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<title>Federal Register, Volume 89 Issue 198 (Friday, October 11, 2024)</title>
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[Federal Register Volume 89, Number 198 (Friday, October 11, 2024)]
[Proposed Rules]
[Pages 82540-82543]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-23327]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1602
RIN 3046-AB28
Recordkeeping and Reporting Requirements Under Title VII, the
ADA, GINA, and the PWFA
AGENCY: Equal Employment Opportunity Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or
``Commission'') is proposing to amend its regulations regarding
recordkeeping and reporting requirements to delegate authority for
making determinations on hardship exemption applications, to set forth
the procedure for applying for exemptions, and to provide a non-
exhaustive list of criteria for considering exemption applications.
These actions are necessary for administrative efficiency and
transparency.
DATES: Comments on the notice of proposed rulemaking (hereinafter
``NPRM'') must be received on or before December 10, 2024.
ADDRESSES: You may submit comments, identified by RIN Number 3046-AB28,
by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Fax: (202) 663-4114. Only comments of six or fewer pages
will be accepted via FAX transmittal, in order to assure access to the
equipment. Receipt of FAX transmittals will not be acknowledged, except
that the sender may request confirmation of receipt by calling the
Executive Secretariat staff at (202) 921-2815 (voice), 1-800-669-6820
(TTY), or 1-844-234-5122 (ASL video phone).
<bullet> Mail: Ray Windmiller, Executive Officer, Executive
Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street
NE, Washington, DC 20507.
<bullet> Hand Delivery/Courier: Ray Windmiller, Executive Officer,
Executive Secretariat, U.S. Equal Employment Opportunity Commission,
131 M Street NE, Washington, DC 20507.
Instructions: The Commission invites comments from all interested
parties. All comment submissions must include the Regulatory
Information Number (RIN) for this rulemaking. Comments need to be
submitted in only one of the above-listed formats. All comments
received will be posted without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>,
including any personal information you provide. However, the EEOC
reserves the right to refrain from posting libelous or otherwise
inappropriate comments, including those that contain obscene, indecent,
or profane language; that contain threats or defamatory statements;
that contain hate speech directed at race, color, sex, national origin,
age, religion, disability, or genetic information; or that promote or
endorse services or products.
Docket: For access to comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Copies of the received comments also will be
available for review at the Commission's library, 131 M Street NE,
Suite 4NW08R, Washington, DC 20507, between the hours of 9:30 a.m. and
4:30 p.m., from December 10, 2024, until the Commission publishes the
rule in final form. Members of the public may schedule a library
appointment by sending an email to <a href="/cdn-cgi/l/email-protection#c48b81808584a1a1aba7eaa3abb2"><span class="__cf_email__" data-cfemail="2f606a6b6e6f4a4a404c01484059">[email protected]</span></a>.
FOR FURTHER INFORMATION CONTACT: Kathleen Oram, Assistant Legal
Counsel, at (202) 921-2665 or <a href="/cdn-cgi/l/email-protection#f9b2988d91959c9c97d7b68b9894b99c9c969ad79e968f"><span class="__cf_email__" data-cfemail="f5be94819d9990909bdbba879498b590909a96db929a83">[email protected]</span></a>, or Lynn
Dickinson, Senior Attorney, at (202) 921-2559 or
<a href="/cdn-cgi/l/email-protection#3e72475050107a575d5557504d51507e5b5b515d10595148"><span class="__cf_email__" data-cfemail="bcf0c5d2d292f8d5dfd7d5d2cfd3d2fcd9d9d3df92dbd3ca">[email protected]</span></a>, Office of Legal Counsel, U.S. Equal Employment
Opportunity Commission. Requests for this document in an alternative
format should be made to the EEOC's Office of Communications and
Legislative Affairs at (202) 921-3191 (voice), (800) 669-6820 (TTY), or
(844) 234-5122 (ASL video phone).
SUPPLEMENTARY INFORMATION: Title VII requires covered entities to
``make and keep . . . records relevant to the determinations of whether
unlawful
[[Page 82541]]
employment practices have been or are being committed.'' 42 U.S.C.
2000e-8(c). Pursuant to its rulemaking authority in sections 709(c) and
713(a) of Title VII, see 42 U.S.C. 2000e-8(c); 2000e-12(a), in 1966 the
EEOC issued regulations requiring covered employers, joint labor-
management committees, labor organizations, political jurisdictions,
school systems or districts, and institutions of higher education
subject to these laws (collectively ``filers'') to report specified
information to the Commission to aid in the administration and
enforcement of federal employment discrimination law. See 29 CFR 1602.7
(EEO-1 report), 1602.15 (EEO-2 report), 1602.22 (EEO-3 report), 1602.32
(EEO-4 report), 1602.41 (EEO-5 report), 1602.50 (EEO-6 report).\1\
Section 709(c) allows filers to apply to the Commission for an
exemption from the reporting requirements if the filers believe
application of these requirements would result in undue hardship.
Accordingly, the EEOC's regulations allow filers to apply for
exemptions from the reporting requirements. See 29 CFR 1602.10 (EEO-1
report exemption), 1602.18 (EEO-2 report exemption), 1602.25 (EEO-3
report exemption), 1602.35 (EEO-4 report exemption), 1602.44 (EEO-5
report exemption), and 1602.53 (EEO-6 report exemption).
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\1\ The EEOC does not currently collect the EEO-2 or EEO-6
reports.
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The EEOC is issuing this notice of proposed rulemaking (NPRM) to
revise 29 CFR part 1602 by creating a new subpart addressing
applications for exemptions that will be applicable to all EEO reports.
This new subpart would replace the existing separate provisions
addressing undue hardship applications for the six EEO reports;
therefore, this NPRM also proposes to remove and reserve 29 CFR
1602.10, 1602.18, 1602.25, 1602.35, 1602.44, and 1602.53. Providing a
single procedure to address all hardship exemption applications will
enhance administrative efficiency and streamline the regulation. This
new subpart would apply to all EEO reports as now constituted or
subsequently modified.
In addition, the Commission proposes to revise its regulations to:
(1) delegate to its Chief Data Officer (CDO) or the CDO's designee \2\
the authority to make determinations on exemption applications; (2)
establish express procedures for exemption applications; and (3)
delineate the criteria that are used for assessing exemption
applications.
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\2\ References to the CDO in this NPRM include the CDO's
designee.
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Currently, the Commission's regulations state that filers may apply
to the Commission for an exemption from the reporting requirements. See
29 CFR 1602.10, 1602.18, 1602.25, 1602.35, 1602.44, and 1602.53. Filers
now submit applications for undue hardship exemptions to the EEOC's
Office of Enterprise Data and Analytics (OEDA), which is led by the
CDO, and OEDA prepares each application for submission to the
Commission. The Commissioners subsequently review and then vote on each
application. The Commission's determination is returned to OEDA, which
then conveys the result to the filer.
The Commission proposes to delegate to the CDO, or the CDO's
designee, authority to make determinations on applications for
exemptions from reporting requirements. The CDO, as Director of OEDA,
administers the Commission's EEO data collections, addresses questions
and concerns filers raise as they prepare their submissions, and works
closely with data collected in EEO reports. Allowing the CDO to
consider and make determinations on filers' exemption applications will
allow the CDO to bring this knowledge and information directly to bear
in assessing applications and will increase efficiencies for both
filers and the Commission.
Section 709(c) of Title VII directs the Commission to accept
applications for undue hardship exemptions, and section 713(a), 42
U.S.C. 2000e-12, grants the Commission authority to issue procedural
regulations ``to carry out the provisions of this subchapter,'' which
includes section 709. Over the course of the many years during which
the Commission has implemented section 709, the Commission has worked
with numerous filers and has accepted and decided many applications for
undue hardship exemptions. The purpose of this procedural rulemaking is
to establish and publicize express procedures and to delineate and
publicize the criteria the CDO will follow in making determinations on
filers' hardship exemption applications. The criteria are a necessary
component of this procedural regulation and are not new; rather, they
are drawn from the Commission's decades of experience implementing
section 709. Finally, publishing the procedures and criteria will
provide greater transparency to filers and the public.
The deadlines for requesting exemptions, as well as the steps for
submitting exemption applications, are provided in each collection's
accompanying instructions.\3\ Upon receipt of an exemption application,
the CDO will expeditiously issue a written determination that will
notify the filer of the disposition of the application, and in the
event the application is denied, the determination will notify the
filer of the deadline for filing the report, which shall be at least 30
calendar days following the determination. While an application for
exemption is pending before the CDO, the filer must continue diligently
to collect and prepare the data required for the report in case the
exemption request is denied. A filer's failure to exercise such
diligence is not cause for additional time to file a report if their
exemption request is denied.
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\3\ At the opening of each specific year's collection(s), the
EEOC provides filers with a web-based ``Instruction Booklet''
containing the eligibility requirements for the respective
collection along with detailed instructions on how to file a report
as well as submit a request for an exemption.
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The regulation identifies a non-exhaustive list of criteria for the
CDO, or the CDO's designee, to consider in making undue hardship
determinations, drawn from the Commission's experience working with
filers over many years. These criteria include the nature and extent of
the filer's efforts to collect and retain the required information; the
degree to which the filer attempted to anticipate and preempt any
problems in collecting and retaining the required information; the
filer's prior data reporting history, including whether the filer
previously failed to submit a report or requested an exemption, and if
so, whether such exemption was granted; the degree to which the
circumstances are beyond the filer's control or are extraordinary; and,
the degree to which compliance has been rendered impracticable or
impossible (e.g., due to natural disaster or data loss).
Title VII requires employers to preserve their records. 42 U.S.C.
2000e-8(c). Nevertheless, through the determination criteria, the
Commission acknowledges that under certain extreme circumstances, e.g.,
where a filer, through no fault of its own, loses its data via security
breach, natural disaster, or other significant disruption, compliance
with the filing requirement may be rendered impossible or
impracticable.
Ultimately, the general expectation is compliance with the
Commission's reporting requirements. Exemptions should be needed only
in rare, extreme circumstances. The Commission expects filers to comply
with Title VII and these regulations by properly maintaining records
and submitting the applicable
[[Page 82542]]
EEO reports when required. To that end, the regulation also includes a
non-exhaustive list of factors that will not serve as a basis for
finding that undue hardship exists: A filer's number of establishments
alone; lack of knowledge about the reporting requirements; routine or
purposeful data expungement by the filer or a third party; and failure
to plan for adequate data security, maintenance, or transfer (e.g.,
data loss due to a change in vendor or employee succession where the
filer or vendor failed to back up the data). Permitting filers to avoid
submitting data based on these grounds would thwart the statutory
purpose of the data collection by incentivizing failure to reasonably
maintain employment records.
Regulatory Procedures
Executive Order 12866
The Commission has complied with the principles in section 1(b) of
Executive Order 12866, Regulatory Planning and Review. This NPRM is not
a ``significant regulatory action'' under section 3(f) of the order and
does not require an assessment of potential costs and benefits under
section 6(a)(3) of the order.
Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) (PRA) applies to
rulemakings in which an agency creates a new paperwork burden on
regulated entities or modifies an existing burden. This proposed rule
imposes no new information collection requirements on the public, and
therefore it will create no new paperwork burdens or modifications to
existing burdens that are subject to review by the Office of Management
and Budget under the PRA.
Regulatory Flexibility Act
The Commission certifies under 5 U.S.C. 605(b) that this NPRM will
not have a significant economic impact on a substantial number of small
entities. To the extent that it affects small entities, it merely
clarifies the process for requesting exemptions. For this reason, a
regulatory flexibility analysis is not required.
Unfunded Mandates Reform Act of 1995
This NPRM will not result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. To the extent that it may apply to
state or local government reporting requirements, it merely clarifies
the process for requesting exemptions. Therefore, no actions were
deemed necessary under the provisions of the Unfunded Mandates Reform
Act of 1995.
Congressional Review Act
This NPRM is not a ``rule'' as that term is used by the
Congressional Review Act (Subtitle E of the Small Business Regulatory
Enforcement Fairness Act of 1996) because, as a proposal submitted for
public comment, it is not a ``rule'' within the definition of 5 U.S.C.
801. The Congressional Review Act only applies to final rules.
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
List of Subjects in 29 CFR Part 1602
Administrative practice and procedure, Equal employment
opportunity, Reporting and recordkeeping requirements.
Accordingly, for the reasons discussed in the preamble, the Equal
Employment Opportunity Commission proposes to amend 29 CFR part 1602 as
follows:
PART 1602--RECORDKEEPING AND REPORTING REQUIREMENTS UNDER TITLE
VII, THE ADA, GINA, AND THE PWFA
0
1. The authority citation for 29 CFR part 1602 continues to read as
follows:
Authority: 42 U.S.C. 2000e-8, 2000e-12; 44 U.S.C. 3501 et seq.;
42 U.S.C. 12117; 42 U.S.C. 2000ff-6; 42 U.S.C. 2000gg-2.
Sec. Sec. 1602.10, 1602.18, 1602.25, 1602.35, 1602.44, and
1602.53 [Removed and Reserved]
0
2. Remove and reserve Sec. Sec. 1602.10, 1602.18, 1602.25, 1602.35,
1602.44, and 1602.53.
0
3. Add subpart S, consisting of Sec. Sec. 1062.57 and 1602.58, to read
as follows:
Subpart S--Exemption From Reporting Requirements
Sec.
1602.57 Procedures.
1602.58 Consideration of exemption requests.
Subpart S--Exemption From Reporting Requirements
Sec. 1602.57 Procedures.
(a) If a filer claims that the preparation or filing of the report
would create undue hardship, the filer may apply to the Commission for
an exemption from the requirements set forth in this part by submitting
a written exemption application according to the applicable
collection's accompanying instructions. Filers must demonstrate with
specific facts (and supporting documentation, as appropriate) how
preparing or filing the report would create undue hardship.
(b) The Commission hereby delegates to its Chief Data Officer
(CDO), or the CDO's designee, authority to make determinations on
applications for exemptions under this subpart.
(1) The CDO shall expeditiously issue a written determination
notifying the filer of the disposition of the exemption application.
(2) If the CDO denies the application for an exemption, the CDO
will notify the filer in writing of the following:
(i) The deadline for filing the report, which will be at least 30
calendar days after the CDO's determination; and
(ii) That the filer may bring a civil action in the United States
District Court for the district where the filer's records are kept,
pursuant to 42 U.S.C. 2000e-8(c).
(c) While an application is pending, the filer must continue to
collect and prepare the data required for the report in case the
exemption request is denied.
(d) The CDO will report annually to the Commission the number of
exemption applications received and the determinations made on those
applications and will make the applications and written determinations
available to the Commission.
Sec. 1602.58 Consideration of exemption requests.
(a) The CDO, or the CDO's designee, will consider the facts and
circumstances presented in each application, including but not limited
to:
(1) The nature and extent of the filer's efforts to collect and
retain the required information;
(2) The degree to which the filer attempted to anticipate and
preempt any problems in collecting and retaining the required
information;
(3) The filer's prior data reporting history, including whether the
filer previously failed to submit a report or requested an exemption,
and if so, whether such exemption was granted;
(4) The degree to which the circumstances are beyond the filer's
control or are extraordinary; and
(5) The degree to which compliance has been rendered impracticable
or impossible (e.g., due to natural disaster or data loss).
(b) The filer bears the burden to demonstrate that the reporting
requirement would result in undue hardship.
(c) Circumstances that generally will not form the basis of a
finding of undue hardship include, but are not limited to:
(1) A filer's number of establishments alone;
[[Page 82543]]
(2) A filer's lack of knowledge about the reporting requirements;
(3) Routine or purposeful data expungement by the filer or a third
party; and
(4) A filer's failure to plan for adequate data security,
maintenance, or transfer (e.g., data loss due to a change in vendor or
employee succession where the filer or vendor failed to back up the
data).
Charlotte A. Burrows,
Chair, Equal Employment Opportunity Commission.
[FR Doc. 2024-23327 Filed 10-10-24; 8:45 am]
BILLING CODE 6570-01-P
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