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OFCCP rescinds earlier intent not to request or use EEO-1 Component 2 pay data

By Pamela Wolf, J.D.

In a move that may signal an eventual return to collection of government contractor pay data information, the DOL’s Office of Federal Contract Compliance Programs is rescinding its previously issued notice stating that it would not request, accept, or use EEO-1 Component 2 data. The OFCCP and the EEOC collect workforce data through the EEO-1 Report under their Joint Reporting Committee. The OFCCP, however, has now determined that it was premature to issue a notice stating OFCCP did not expect to find significant utility in the pay data collection. The rescission is effective immediately, according to the OFCCP’s September 2, 2021 Federal Register notice.

Pay data collection stayed, then reinstated. The move follows the August 2017 stay of Component 2 pay collection under the Trump Administration. On March 4, 2019, in response to a lawsuit challenging the stay, a federal court in the District of Columbia vacated the stay and ordered that the previous approval of the EEO-1 Component 2 collection was in effect. 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 immediate reinstatement of the collection of 2017 and 2018 Component 2 data from EEO-1 filers. A February 6, 2020 Joint Status Report to the court stated that more than 89 percent of all eligible employers had submitted Component 2 data. On February 10, 2020, the district court deemed the pay data collection complete.

EEOC declines to renew pay data collection. On September 12, 2019, the EEOC published a 60-day notice in the Federal Register announcing its intention not to seek renewal of Component 2 data collection. The EEOC concluded that the agency should consider information from the Component 2 data collection before deciding whether to pursue another pay data collection consistent with the Paperwork Reduction Act.

On March 23, 2020, the EEOC published a 30-day notice indicating that it would not seek an extension to continue Component 2 data collection.

OFCCP follows suit. On November 25, 2019, the OFCCP published a notice in the Federal Register stating 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.” Although the notice conceded that “the data could potentially inform OFCCP’s scheduling process for compliance evaluations,” the agency 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.

No opportunity to analyze data submitted. The OFCCP now points out that it issued this November 2019 notice before the district court had even deemed the collection of 2017 and 2018 Component 2 data complete in February 2020. At that time, the OFCCP had little information about the response rate of the collection, how the data was submitted and assembled, or the completeness of the data. The OFCCP also had no opportunity to review and analyze this data.

Better late than never. Considering the matter further, the OFCCP now believes that the position the agency took in the November 2019 notice “was premature and counter to the agency’s interests in ensuring pay equity,” and that there are substantial reasons to believe that the Component 2 data could be useful to the 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,” the September 2 rescission notice states.

The OFCCP said that it intends to devote further agency resources to evaluate the data’s utility because the joint collection and analysis of compensation data could improve the OFCCP’s ability to investigate potential pay discrimination efficiently and effectively. Further, analyzing compensation data in conjunction with other available information—such as labor market survey data—could help the OFCCP identify neutral criteria to select contractors for compliance evaluations.

Accordingly, the OFCCP is now rescinding its November 25, 2019 notice and 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.