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Does your company need to file an EEO-1 report?

Does your company answer YES to any of these three questions: (1) Have 100 or more employees and subject to Title VII of the Civil Rights Act of 1964, (2) Have fewer than 100 employees but the company is owned by or corporately affiliated with another company and the entire enterprise employs a total of 100 or more employees and is subject to Title VII of the Civil Rights Act of 1964, or (3) Is a  government prime contractor or first-tier subcontractor subject to Executive Order 1126 with 50 or more employees and have a prime contract or subcontract amounting to $50,000 or more?  If so, your company is required to file an EEO-1 report annually with the Equal Employment Opportunity Commission.

EEO-1 Report Basics:

For those of you who are new to EEO-1s, let’s start with what is an EEO-1 Report? The EEO-1 Report is a compliance survey that compiles company employment data to be categorized by race/ethnicity, gender, and job category.  This data must be gathered from one pay period in July, August, or September of the current year.  A sample EEO-1 Report can be accessed here. The deadline to file this annual report is September 30^th and the EEOC keeps the information confidential.

So can the company just guess as to each employee’s ethnicity? Yes, but preferably not; the EEOC prefers employees self-identify.  This means employers need to provide all employees, both full and part-time, with the opportunity to self-identify.  Only if the employee declines to provide the information may the employer use employment records or visual observation.  However, if the employee declines to self-identify, do not press them on it.  You should, however, ask that the employee turn in the survey checking a box that they have declined to self-identify.  In the future it is a best practice to ask new hires to self-identify as soon as they begin employment if you have a HR system that stores employee data.

So, how does the company go about collecting this information? The company should provide each employee with a voluntary self-identification form requesting that the employee select one of the seven race/ethnicity categories with which he/she most identifies: (1) Hispanic or Latino, (2) White, (3) Black or African American, (4) Native Hawaiian or Other Pacific Islander, (5) Asian, (6) American Indian or Alaska Native, or (7) Two or more races.

The form should also request the employee’s job title, as the employer is also required to place each employee in one of 10 specific job categories: (1) Executive/Senior Level Officials and Managers, (2) First/Mid-Level Officials and Managers, (3) Professionals, (4) Technicians, (5) Sales Workers, (6) Administrative Support Workers, (7) Craft Workers, (8) Operatives, (9) Laborers and Helpers, and (10) Service Workers. The EEO-1 instruction booklet defines each job category.  For instance, the Executive/Senior Level Officials are those individuals, in part, “who plan, direct and formulate policies, set strategy and provide the overall direction of enterprises/organizations for the development and delivery of products or services, within the parameters approved by boards of directors and other governing bodies.”  This category includes CEOs, COOs, CFOS, business heads, presidents or executive vice presidents of functional areas or operating groups, CIOs, chief marketing officers, chief legal officers, management directors, and managing partners.  The category of service workers includes jobs in food service, cleaning service, personal service, and protective service activities.  It is a best practice for the employer to determine each employee’s job title and then have Human Resources make the determination as to which category is appropriate to ensure consistent categorization.

The self-identification form should further make clear to the employee that submitting the information is voluntary and in no way will subject the employee to an adverse action.

What do you do with the completed self-identification forms?

The completed forms should be treated in the same way you handle medical records. The forms should be kept separate from the personnel file and available on a need to know basis.

Types of Reports:

Once you have all of the employee self-identification forms, now what? If your company only has one location with a 100 or more employees, you will need to submit a Type/Status 1 EEO-1 Report.

However, if your company has multiple locations then you are considered a multi-establishment company and will need to submit multiple reports.

For instance, let’s assume you own a series of widely successful car washes all over the state, you have in excess of 100 employees in total, and you run the business operations out of a central location, then you will need to submit the following:

• Headquarters Report – must include employees working at the main office of the company and those employees working from home who report to the main office. Employment must be categorized by race, gender, and job category.

• Establishment Report – a separate EEO-1 Type 4 report for each physical location with 50         or more employees. Employment must be categorized by race, gender, and job category

• For sites with fewer than 50 employees, you can either submit an Establishment List that only contains the establishment name, complete address and total number of employees for each physical location or a Status 8 Establishment Report that includes employment data categorized by race, gender, and job category.

• A Consolidated Report – includes all employees of the company categorized by race, gender, and job category. This report will be generated automatically by the EEOC’s website if your company chooses to file a Status 8 establishment report for locations with less than 50 employees. If not, the company will have to manually include the employees from the establishment list.

What are the Penalties for failure to file?

Filing an EEO-1 Report is required by law, and the EEOC may compel an employer to file this form by obtaining an order from a United States District Court. If your company is a Federal contractor or subcontractor, failure to comply may include termination of the Federal government contract and debarment from future Federal contracts.

Furthermore, if the company is responding to an EEOC Charge and the investigator requests the latest EEO-1 report, the EEOC can then compel the company to file it if not already produced. Also, if you fail to provide an EEO-1, the EEOC may determine that your failure is an attempt to hide misconduct and it will presume such misconduct did occur, even though there are no facts to prove this.  This is a rare process and typically begins with a “show cause letter.” Before this happens, you will know it is coming.

A final and hopefully obvious note is the information submitted on the EEO-1 report must be truthful. The making of willfully false statement in an EEO-1 Report is punishable by fine or imprisonment as set forth in United States Code, Title 18, Section 1001.

Even if you have missed your obligation in the past, now is a good time to reach compliance. Most companies do this without outside assistance, but if in doubt call competent counsel.  However, in 2018, the process may be different due to the collection of equal pay data.

Brody and Associates regularly advises management on complying with state and federal employment laws such as the EEO-1 reporting process. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.