On Friday January 25th, President Trump and Congress ended the partial federal government shutdown by agreeing to a three-week continuing resolution to fund the government’s operations. Prior to that agreement, over 800,000 federal employees had been kept from their posts or were working without pay for over a month. For the Equal Employment Opportunity Commission, that meant all but approximately 100 employees of the over 2,000-member agency were not working. Consequently, the matters ordinarily handled by the EEOC were greatly impacted and there are several important takeaways from the recent shutdown, of which employers should be aware, particularly as the specter of another possible shutdown looms a mere three weeks from now.
First and perhaps most critically, employers should presume that their obligation to file an annual EEO-1 report by March 31, 2019 remains in place, although that date could be moved back now that the government has reopened. As a reminder, all employers with fifteen (15) or more employees are required to keep records reflecting workplace demographics of their employees and certain employers are obligated to report that information on an annual basis using the EEOC-administered EEO-1 form. The EEO-1 requires company employment data to be categorized by race/ethnicity, gender, and job category. For assistance, the EEO-1 Joint Reporting Committee maintains a toll-free help line for employers, which was still accessible throughout the shutdown. Based on our calls to that help line, the March 31st deadline was expected to remain in place as long as the shutdown ended before the week of January 27, 2019. However, even though the shutdown concluded over the weekend, it’s still not entirely clear whether the deadline will remain as previously scheduled or be moved back to accommodate for lost time. Regardless, employers should continue gathering the necessary information to be sufficiently prepared to submit their EEO-1 data by whatever deadline is ultimately decided. Additional information pertaining to the EEO-1 survey and form may be found at https://www.eeoc.gov/employers/eeo1survey/faq.cfm.
Second, in the event of another partial shutdown in February, employers should be aware that there will be no employees staffing the various toll-free numbers for the EEOC, where prospective charging parties and employers alike go to obtain information relative to a pending or potential charge. As a result, employers should expect that it will be difficult to obtain any information pertaining to pending or closed cases if another shutdown occurs. Accordingly, they should take advantage of the opportunity of the current window to contact the Commission to resolve any lingering questions or concerns they might have.
Third, if you have scheduled a mediation with the EEOC related to a pending charge of discrimination that is set to occur during a prospective shutdown period, expect that the mediation will need to be rescheduled after the shutdown has ended. Employers and their representatives should follow up with their EEOC-assigned mediator to determine the status of their case.
Lastly, the EEOC public portal for charges of discrimination is likewise out of service during a shutdown, meaning that charges of discrimination, position statements, and supporting documents cannot be submitted online during that time. Instead, all charges and/or responses must be sent in hard-copy via U.S. Mail to the appropriate regional office (note: the U.S. Postal Service is not impacted by the shutdown). Those documents mustbe signed, and all previously established deadlines are still in place, notwithstanding a shutdown. To that end, the EEOC has specifically cautioned that some employees may inadvertently miss their filing deadlines if they simply wait for the online portal to come back on line, as a partial government shutdown has no effect on such deadlines.[1]
As a final note regarding EEO-1 reporting, recall that one of the more controversial changes to the EEO-1 form during the Obama administration was the addition of a pay data reporting requirement, intended to combat discriminatory compensation practices. Due to the extensive lobbying efforts of individual employers and organizations like the U.S. Chamber of Commerce, that new requirement was put on hold by the Trump Administration in August 2017. While pay data collection is not expected to be part of the 2018 EEO-1 data reporting process, employers should remain cognizant of the fact that the EEOC has vowed to revisit and perhaps rewrite the stayed rule, particularly after two national civil rights groups sued the EEOC to reinstate the requirement. Furthermore, collecting this information and keeping it on hand may be useful to employers in the event that information is sought by the EEOC during a charge investigation or by a plaintiff through discovery in litigation.
Reminger Co., LPA, JANUARY 2019