EEOC Employee Demographic Data Collection Starts Soon: What Employers Should Know
by Brian Frederick and Kenneth Rosenberg
The U.S. Equal Employment Opportunity Commission (EEOC) requires certain private employers and federal contractors to submit and certify reports concerning their workforce demographic data. This data collection, known as the 2022 EEO-1 Component 1 data collection, will open on Tuesday, Oct. 31, 2023, and the deadline for employers to submit their reports to the EEOC is Dec. 5, 2023. Accordingly, employers required to submit such reports should be gathering the required workforce demographic data and be prepared to comply.
The EEOC requires private employers with 100 or more employees that are covered by Title VII of the Civil Rights Act of 1964, as amended, and federal contractors with 50 or more employees that meet certain criteria, to report annually the number of individuals they employ by job category, sex, and race or ethnicity. This data is collected by the EEOC, and reported by employers, through the EEO-1 Component 1 Online Filing System (OFS). Employers can submit the required workforce demographic data on the OFS either manually or via a data file upload. The OFS, 2022 EEO-1 Component 1 Instruction Booklet, Data File Upload Specifications, FAQs and Fact Sheets can be accessed here.
Workforce Demographic Data
Employers required to report must select a pay period during the fourth quarter (Oct. 1, 2022, through Dec. 31, 2022) for which to report the workforce demographic data. This employer-selected period is known as the “workforce snapshot period.” Employers are to report the job category, sex, and race or ethnicity, for all employees employed during this period, including all full-time and part-time employees. If an employee was employed at any time during the workforce snapshot period, then the employee must be reported, even if they were terminated or resigned during the period, or after.
Notably, beginning with the 2023 EEO-1 Component 1 data collection, an employer that meets the employee threshold at any time during the fourth quarter (Oct. 1, 2023 through Dec. 31, 2023), will be required to report, and may not select a workforce snapshot period wherein the employer falls below the threshold to avoid the filing requirement.
The Required Reports
Single-Establishment Employers
An employer that conducts business or performs services or industrial operations at only one establishment is required to file a “Single-Establishment Employer Report.” This report was previously referred to as a “Type 1” single establishment report.
Multi-Establishment Employers
A “multi-establishment employer” is an employer with more than one establishment where business is conducted or where services or industrial operations are performed. Multi-establishment employers are required to submit a “Headquarters Report” (previously referred to as a “Type 3” headquarters report), that includes the required demographic data for all employees employed at its headquarters, and “Establishment-Level Reports” that include the demographic data for employees employed at each non-headquarters establishment of the employer, regardless of the number of employees at each establishment. Beginning with the 2022 EEO-1 Component 1 data collection, the Establishment-Level Reports will replace the former “Type 4” report (for establishments with 50 or more employees), the “Type 8” report (for establishments with fewer than 50 employees), and the “Type 6” establishment list report – which was discontinued beginning with the 2021 EEO-1 Component 1 data collection. In addition to the Headquarters Report and Establishment-Level Reports, multi-establishment employers are also required to submit and certify to a “Consolidated Report,” which includes the workforce demographic data for all of a multi-establishment employer’s employees, however, the Consolidated Report will be auto-generated within the OFS based on the data from the Headquarters Report and Establishment-Level Reports.
Remote employees should be included in the EEO-1 Component 1 report in accordance with the specific establishment that they report to or are assigned to. If an employee does not report to, or is not assigned to, any physical location, they should be included in the report for the establishment to which their manager reports or is assigned. If there is no such establishment, the employee should be included in the Headquarters Report. If the employer is entirely remote, then the employee should be reported at the address where the entity is legally registered to do business.
Currently, employees who work at a client site are required to be included in the employer’s EEO-1 Component filing, and employers have the option to report these employees by either (1) using the client site address as the location of the establishment or (2) reporting those employees at an establishment of the employer. However, beginning with the 2023 EEO-1 Component 1 data collection, employers will no longer have this option and will be required to report employees working at client site locations at the address of the client site. As such, employers should be aware and prepared for this impending change next year.
The Reporting of Non-Binary Employees
Presently, only binary options (i.e., male or female) are available for reporting employees as part of the EEO-1 Component data collection. Nevertheless, employers may voluntarily choose to report employee demographic data for non-binary employees. For single-establishment employers, this may be done in the “Certification Comments” section of the report. Similarly, for multi-establishment employers this may be done in the “Headquarters or Establishment-Level Comments” section of the report. EEOC guidance provides that such comments should be prefaced with the phrase “Additional Non-Binary Employee Data:”. The non-binary employees reported in the comments should not be otherwise included in the report. For example, if a single-establishment employer has 100 employees and voluntarily reports two as non-binary in the comments section, the employer’s Single-Establishment Employer Report should reflect an employee count of 98, with the two non-binary employees’ complete demographic data reported in the comment section only.
Changes for Federal Contractors
Beginning with the 2022 EEO-1 Component 1 data collection, federal contractors will no longer be required to provide their Data Universal Numbering System (DUNS) numbers associated with their headquarters and/or establishments. Instead, federal contractors must now provide their “Unique Entity ID” (UEI), which can be created at www.sam.gov, with their required reports. This change is due to the federal government’s decision on April 4, 2022, to stop using the DUNS to identify federal contractors doing business with the government and to instead start using the UEI as the official identifier for federal contractors.
Failure to File
Employers that do not submit and certify their required 2022 EEO-1 Component 1 report(s) by the Dec. 5, 2023 deadline, will receive a “Notice of Failure to File” from the EEOC. The notice will instruct employers to submit their workforce demographic data as soon as possible, but no later than Tuesday, Jan. 9, 2024. After Jan. 9, 2024, employers that have failed to submit and certify their 2022 EEO-1 Component 1 report(s) will be deemed out of compliance, and no additional reports will be accepted. Upon application by the EEOC, employers that fail to file when required to do so may be compelled to file by order of a U.S. District Court.
Employers that are not able to comply by the deadline because compliance would create an undue hardship may submit a written application for an undue hardship exemption. This written exemption application must be mailed to the EEOC and postmarked on or before Dec. 5, 2023.
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Given that the 2022 EEO-1 Component 1 data collection will open on October 31, and the deadline to file is Dec. 5, employers should be prepared to select their workforce snapshot period. Additionally, employers should ensure that they have collected employees’ job category, sex, and race or ethnicity data for the relevant period through the use of voluntary self-identification forms, which is typically done during employee onboarding. However, where an employee declines to self-identify, then the employer can use employment records or observer identification to record the EEO-1’s demographic data.
Employers that have questions regarding the 2022 EEO-1 Component 1 data collection should seek the assistance of an experienced labor and employment attorney who is familiar with these requirements to avoid the risks of non-compliance.
