As the longest government shutdown in history has come to an end, the U.S. Equal Employment Opportunity Commission recently released guidance for employers faced with upcoming EEO-1 submission deadlines and responding to charges of discrimination filed during the government shutdown.

For 2018 EEO-1 submissions, the EEOC announced that it has postponed the opening of the EEO-1 survey until early March 2019 and that it will extend the deadline to submit EEO-1 data until May 31, 2019. The EEO-1 is an annual survey that requires all private employers with 100 or more employees and federal government contractors or first-tier subcontractors with 50 or more employees and a federal contract, sub­contract or purchase order amounting to $50,000 or more to file the EEO-1 report. The EEOC is encouraging employers who are required to submit an EEO-1 to continue to check back on the EEOC website in the coming weeks for an updated schedule for submissions.

If an employer received a notice of a charge of discrimination while the government was shutdown, between December 22, 2018 and January 28, 2019, the EEOC implemented a blanket due date for all position statements responding to such charges to be uploaded to the EEOC portal. The EEOC is requiring all positions to be uploaded to the EEOC portal by March 1, 2019. The EEOC’s Q&A Guidance explains the automatic extension granted for due dates and the new submission date of March 1, 2019.

Finally, the EEOC reiterated in its guidance that the government shutdown does not affect the 90-day time period a charging party has for filing a lawsuit based on a Notice of Right to Sue. Once a charging party receives a Notice of Right to Sue, a lawsuit must be filed within 90 days.

Last week, Senators Lamar Alexander (R-Tennessee) and Pat Roberts (R-Kansas) urged President Trump to rescind the new requirements of the revised EEO-1 form. I originally wrote about the proposed EEO-1 form last fall – you can find my blog post here. The revised form requires, for the first time, that covered employers submit pay data to the government. The purpose is to assist the EEOC in identifying and eradicating pay discrimination based on gender, race, and other protected categories.

According to the Senators, “[t]hese revisions will place significant paperwork, reporting burdens, and new costs on American businesses, and will result in few jobs created and higher prices for American consumers.” The EEOC projected it would take the approximately 61,000 covered employers a total of about 1.9 million hours and cost $53.5 million to complete the new forms.[1] However, the United States Chamber of Commerce claims the figures are closer to 8 million hours and $400 million to comply.[2]

The EEOC had initially set a September 2017 deadline for companies to file the new report. After much pushback from the business community, the first reports under the new rules are due by March 31, 2018. This gives elected officials plenty of time to try and convince the Trump Administration to reverse course. The reversal must come from the Office of Management and Budget, which is led by former South Carolina Representative Mick Mulvaney.

This update serves as a reminder to employers to be proactive regarding pay discrepancies. Employers should consider conducting an internal audit to determine whether there is a legitimate business reason for differences in pay among similar categories of employees.

[1] https://www.bna.com/scrap-eeoc-pay-n57982086684/

[2] Id.