Updated January 11, 2017

THE REVISED EEO-1 AND SUMMARY PAY DATA: QUESTIONS AND ANSWERS FROM THE EEOC'S OCTOBER 2016 EMPLOYER WEBINARS

As part of its commitment to technical assistance, the EEOC responds here to some questions from its October 2016 employer webinars about the revised EEO-1 and summary pay data. A recording of one of these webinars, with the PowerPoint, is available for viewing on the EEOC's website. For complete information about the new EEO-1, see the EEOC's 2017 EEO-1 Survey website.

TOPIC I - COVERAGE. Employers and covered federal contractors with 100 or more employees on the payroll during one employer-selected pay period between October 1 and December 31 will file the EEO-1 with summary pay and hours-worked data starting with the 2017 EEO-1 report. The selected pay period is called the "workforce snapshot period." Employers that do not have a total of 100 employees during their workforce snapshot period between October 1 and December 31 will not submit the EEO-1 that year. (The only exception will be for employers that are covered federal contractors with 50-99 employees in 2017; they will submit employment data, but not summary pay and hours worked data.)

(1) To determine coverage, should an employer count employees who are employed during the workforce snapshot period if they are no longer active employees by December 31 of that year?

Yes. Even if an employee is no longer an active employee as of December 31, the employer counts him for the EEO-1 if he was employed during the workforce snapshot period.

(2) If an employer has both union and non-union employees, does the employer need to count employees from both categories on the EEO-1?

Yes. Employers count all employees during the workforce snapshot period, regardless of union status.

(3) If an employer has numerous locations, and some of the locations have fewer than 100 employees, does the employer only report summary pay and hours-worked data for locations with more than 100 employees?

No. As in prior years, each employer, including covered federal contractors meeting the EEO-1 reporting threshold of 100 employees, files an EEO-1 report for each location (called "establishment"), a "headquarter report" for its principal or headquarters office, and a "consolidated report" for all its establishments. Starting in 2017, summary pay and hours-worked data is included. As in prior years, there will be two options for reporting on establishments with fewer than 50 employees. The EEO-1 online software will automatically generate a consolidated report for employers that choose to provide full data for establishments with fewer than 50 employees. For more details about reporting for multi-establishment employers, see the 2017 EEO-1 Instructions, HOW TO FILE, Section 2(c).

(4) If employment levels for the firm as a whole fluctuate above and below 100 employees in October through December, is the employer obligated to choose a workforce snapshot period with 100 or more employees?

No. The employer is not obligated to use a pay period when it has a total of 100 or more employees. The employer may choose any pay period between October 1 and December 31 as its workforce snapshot period.

TOPIC II - SUMMARY PAY DATA. Employers reference an employee's wages as reported on his W-2, Box 1, for the calendar year, to select the correct pay band on the EEO-1. Employers then tally and report the total number of employees in each pay band. If there are no employees in a pay band, employers leave the cell blank.

(5) Can employers reference gross annual earnings instead of W-2, Box 1, earnings because gross income does not include any deductions?

No. Employers may not reference gross annual earnings instead of W-2, Box 1, earnings. The EEOC received and considered public comments about different measures of pay and decided to use W-2, Box 1, earnings.

(6) Should employers calculate and then report the annual earnings for employees who did not work the full calendar year? For example, in what pay band should an employer report an employee who was hired and started work on July 1 with an annual salary of $100,000, but whose W-2, Box 1, will only report $50,000 because she only worked half of the year? No. Employers do not report annualized earnings for employees who work part of the year. Rather, employers use the information in Box 1 on each employee's W-2 to assign the employee to an EEO-1 pay band. The employer in this example would count the July 1 through December 31 employee in the pay band that corresponds to $50,000, assuming that is the number in the employee's W-2, Box 1.

One of the reasons the EEOC is collecting hours worked data is to account for situations like this, in which an employee works a partial year or works part-time.

(7) What is the purpose of choosing a specific pay period for EEO-1 reporting between October 1 and December 31 if the summary pay data is based on end-of-year W-2, Box 1, earnings for the entire calendar year?

The purpose of choosing a specific pay period is to have a definite point in time for counting and identifying the set of employees for the EEO-1 report.

The requirement to choose a specific pay period is not new; the only change for the 2017 EEO-1 report is the calendar year quarter. Previously, employers selected a pay period in the third quarter of the calendar year, between July 1 and September 30. Now, employers select a pay period in the fourth quarter, between October 1 and December 31.

TOPIC III - HOURS WORKED DATA. On the 2017 EEO-1, employers report total hours worked during the year for the employees counted during the workforce snapshot period. No new recordkeeping is required. For employees who are not exempt from the FLSA, employers report FLSA hours worked. For employees who are exempt from the FLSA, employers report proxies of either 20 hours (part time) or 40 hours (full time) per week or the actual hours worked, if the employer keeps such records and chooses to use this information.

(8) If an employer already knows that a FLSA-exempt employee works a standard 35 hours per week, can the employer report these hours instead of the 40 or 20 hours per week proxy?

Yes. The employer has the choice whether to report actual hours or the designated proxy hours of 40 or 20 hours per week for each week the employee worked that year. On the EEO-1, employers report total hours worked during the year, not the week.

(9) If the employer has an exempt employee who actually works 30 hours per week (per existing records) but the employer does not track the actual hours of other exempt employees, can the employer report only one exempt employee's actual hours worked but use the proxy for all other exempt employees?

Yes. If the employer only tracks hours worked for one exempt employee, the employer may report this individual's actual hours but use the proxy hours (20 or 40 hours per week) for other exempt employees, multiplied by the number of weeks worked that year.

(10) Will employers have to report the hours worked or hours paid on the EEO-1?  In other words, should employers count hours for paid time off, paid sick leave, paid holidays, etc. for the EEO-1?

The EEO-1 instructions adopt the Fair Labor Standards Act (FLSA) definition of hours worked. Therefore, the hours-worked data that employers will report on the EEO-1 will be based on the same hours worked that employers record for the FLSA purposes.  FLSA hours worked generally do not include paid leave, such as sick leave, vacation leave, or paid holidays.  Therefore, this approach will also be used for the 2017 EEO-1.  Employers are encouraged to rely on the U.S. Department of Labor Wage and Hours Division resources for guidance on hours worked for FLSA purposes.  See Fact Sheet #22: Hours Worked Under the Fair Labor Standards Act (FLSA).   

As noted in response to Question 8 above, for an employee exempt under the FLSA, the employers have a choice whether to report the designated proxy hours of 40 or 20 hours per week for each week the employee worked that year or, alternatively, to report actual hours worked, as defined by FLSA, if the employer already maintains records of actual hours worked for that employee.  The employer will not have to create or retain any new records of hours worked.  The employer may refer to any records it already keeps for the purposes of calculating hours worked for EEO-1 reporting.