EEO-1 reporting: what you need to know

August 29, 2008

Excerpted from Michigan Employment Law Letter written by attorneys at the law firm of Vercruysse Murray & Calzone, P.C.

The Office of Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC) require certain employers to report their workforce demographics each year. The report, commonly referred to as an EEO-1 report, must typically be filed between August 1 and September 30. This article provides an overview of the reporting requirements and updates you on recent changes.

Audio Conference: 2008 EEO-1 Deadline Looms: How to Re-Survey Your Workforce

Who must file an EEO-1 report
If you employ 100 or more employees, you are required to file an annual EEO-1 report. State and local governments, primary and secondary school systems, institutions of higher education, Indian tribes, and tax-exempt private membership clubs (other than labor organizations) are exempt and do not have to report.

It's important to note that the 100-employee threshold is an aggregation of all affiliated companies. Even if a separately incorporated employer has fewer than 100 employees on its payroll, it still will be required to report if the company is owned by or affiliated with another company and the combined total number of employees equals or exceeds 100. In that case, the affiliated companies file reports for locations with 50 or more employees. The parent company then submits a list of facilities employing fewer than 50 workers, along with a report for the company's headquarters and a consolidated report for all locations.

The reporting threshold is lower for federal contractors and subcontractors. Federal contractors that employ 50 or more employees and are prime contractors or first-tier subcontractors that have a contract, subcontract, or purchase order totaling $50,000 or more must report.

How to file an EE0-1 report
Filing involves filling out an online form with the EEOC/OFCCP Joint Reporting Committee. The report requires you to break down your workforce by gender and race. Employees must first identify whether they are Hispanic/Latino. If they aren't of Hispanic/Latino descent, they must choose an affiliation from one the following categories: black, white, Asian or Pacific Islander, Native-American or Alaskan Native, or "two or more races."

The addition of a multirace category was new in 2007, and the classifications were changed slightly. You are required to invite new employees to self-report their classification on a self-identification form. As a result of the changes in the race categories, the EEOC and OFCCP also strongly encourage you to resurvey your current workforce with an invitation to self-report. That doesn't mean walking around your facility asking people what race they consider themselves. If an individual doesn't self-report, you'll need to make your best guess; you can't require employees to self-report.

You're also required to break down your workforce by job classification. Available categories include executives, professionals, technicians, sales workers, office administrative support, skilled craft workers, semiskilled operatives, unskilled laborers, and service workers. The EEOC provides an instruction manual that categorizes most jobs into one of the nine job classifications. The report should focus on the workforce as it exists in a particular pay period in July of the reporting year. Although reports must typically be filed by September 30 of a given year, extensions can usually be requested by e-mail or by phone and are routinely granted for a period of up to 30 days.

Penalties for noncompliance
If you are required to report and fail to do so, you could be subject to a lawsuit to compel you to report, while false reporting could result in fines or imprisonment. Government contractors that fail to report can lose their federal contracts. Additionally, if a discrimination charge is filed against your company with the EEOC, the agency may check to see if you filed your report. If the EEOC investigator finds out that you didn't file, it may negatively influence his opinion of the company and lead to a lawsuit.

Bottom line
EEO reporting is required by law. Gathering the appropriate data, while relatively simple at small companies, can be quite time-consuming for large companies that don't keep centralized employment records. Large companies should appoint an individual to be responsible for gathering the data from the various locations and drafting the reports.

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Copyright 2008 M. Lee Smith Publishers LLC. MICHIGAN EMPLOYMENT LAW LETTER . MICHIGAN EMPLOYMENT LAW LETTER is intended to provide information but not provide legal advice regarding any particular situation. The information in this Law Letter is to make you aware of the implications of several contemporary problems. This Law Letter is not intended to be, and should not be regarded as, a legal opinion or legal advice. It is simply not possible or prudent to offer legal advice or a legal opinion without a prior thorough investigation and analysis of the facts attendant to any specific situation.