Legal Alert: Employers Must Use New EEO-1 Form for 2007

Date   Apr 10, 2007

Covered employers should be aware that they will be required to use the EEOC’s revised EEO-1 Report form for their 2007 EEO-1 Report, which is due September 30, 2007.

Covered employers should be aware that they will be required to use the EEOC’s revised EEO-1 Report form for their 2007 EEO-1 Report, which is due September 30, 2007. This is the first year employers have been required to use the new form, which incorporates revised race/ethnicity groupings and job categories. In an effort to minimize the burden on employers during the transition to the new form, the EEOC will not require employers to resurvey current employees to obtain information on the new race and ethnicity groupings until 2008. However, the EEOC strongly encourages employers to utilize opportunities to resurvey without additional burden (for example using routine updates of employee personal information to obtain updated EEO-1 data) as often and as soon as possible. Additionally, employees hired in 2007 should be surveyed as part of the new hire process using the new EEO-1 race/ethnicity groupings.

What is the EEO-1 Report?

The EEO-1 Report is an employer-compiled report that provides the federal government with workforce profiles by gender and defined race/ethnicity groupings in defined job categories. Private employers with 100 or more employees, as well as federal government contractors with at least one government contract of $50,000 or more and 50 or more employees, must file an EEO-1 Report form annually. Employers must use employment data from any pay period between July and September 2007 for the 2007 Report. Data must include all full-time and part-time employees. Leased, casual and temporary employees are not included in the filing. (However, covered employers, including employment agencies, who provide workers to other companies for a fee and continue to handle personnel matters relating to these workers, such as payroll, benefits and compliance reporting, must include these employees on their EEO-1 Report.)

How Has the Report Changed?

The EEOC made the following changes to the race/ethnicity groupings:

1.    Moved “Hispanic or Latino” from the existing race/ethnicity groupings to a separate grouping on the form. Employees reported as “Hispanic or Latino” are not to be reported under any of the remaining race/ethnicity groupings;

2,    In the remaining race/ethnicity groupings, divided “Asian or Pacific Islander” into the two separate categories of “Asian” and “Native Hawaiian or other Pacific Islander,” renamed “Black” as “Black or African American,” and added a new grouping of two or more of the non-“Hispanic or Latino” groupings.

Thus, the revised EEO-1 Report form now provides, under the Race/Ethnicity heading, a category entitled Hispanic or Latino and a category entitled Not-Hispanic or Latino. Under the Not-Hispanic or Latino heading are the following racial groupings:

· White;

· Black or African American;

· Native Hawaiian or Other Pacific Islander;

· Asian;

· American Indian or Alaska Native; or

· Two or more of the preceding races

Employees who do not self-identify(or are not identifiable) as Hispanic or Latino must be reported in one of the above racial groupings. Employees who do self-identify (or are identifiable) as Hispanic or Latino (defined in the instructions for completing the form as all people of Cuban, Mexican, Puerto Rican, South or Central America or other Spanish culture or origin regardless of race) should not be asked to self-identify (and are not to be reported) in any of these racial categories.

The EEOC also made several changes to the job categories portion. The most significant change is dividing “Officials and Managers” into two subcategories:

1.    “Executive/Senior Level Officials and Managers” – those who plan, direct and formulate policy and provide the overall direction of the organization; and

2.    First/Mid Level Officials and Managers” – those who direct implementation or operation within the parameters established by Executive/Senior Level Management.

If the Employer Does not Resurvey Employees for the 2007 Report, How Should it Address the New Race/Ethnicity Categories?

The EEOC directs employers who do not resurvey employees for the 2007 Report to count employees previously treated as “Asian/Native Hawaiian or other Pacific Islander” as “Asian” for the 2007 EEO-1 Report. Of course, 2007 hires, who should have been surveyed with the new categories, should be reported in the appropriate categories.

How Should Employers Address the New Job Categories?

Employers do not need to resurvey employees to update their job categories in accordance with the revised EEO-1 Report form. However, they should review the position descriptions or requirements of each job title and make new assignments of job titles to EEO-1 job categories based upon the revised definitions in the EEO-1 Report form. This certainly affects all job titles previously assigned to the former Officials & Managers category.

How Should Employers Collect Race and Ethnicity Information When They Begin to Resurvey Employees?

The EEOC has stated that it strongly prefers the use of self-identification rather than visual observation when gathering data. Only when an employee declines to self-identify may observation or employment records be used. The EEOC instructs employers to use a two-question format: first asking if the employee is Hispanic or Latino (ethnicity); and second, if the employee has not reported as Hispanic or Latino, asking what race or races (of the newly defined groupings) the employee considers him or herself to be.

What are the Penalties for Failure to File the EEO-1 Report?

Penalties for failure to file EEO-1s can include record-keeping violations and, for federal contractors, debarment.

How Do The New EEO-1 Categories Impact Federal Contractors?

Federal contractors who are required to compile and update affirmative action programs in accordance with EO 11246 should be aware that the OFCCP has not stated whether it will adopt the EEO-1 categories. Additionally, Department of Labor/VETS has not stated whether it will adopt the EEO-1 categories for the VETS-100 annual report. Since the EEOC expects that employers will resurvey for EEO-1 purposes as soon as practicable, covered federal contractors may want to structure their EEO-1 survey form so that the information can be converted to the race/ethnicity groupings still used by OFCCP and Department of Labor/VETS, or conduct separate surveys for these purposes. Note that covered federal contractors will also have to track applicant flow using the previous race/ethnicity groupings until such time as the OFCCP adopts the new groupings, if it does so.

Employers’ Bottom Line:

Employers who have not already done so should immediately take steps to reassign job titles to the new EEO-1 job categories and create or modify post hire forms used to gather EEO-1 information for new employees to include the newly created race/ethnicity groupings. Employers should also begin updating any software used to track EEO-1 information to include the newly created job categories and race/ethnicity groupings and, in light of the EEOC’s expectation that existing employees will be resurveyed as soon as practicable, develop a schedule for distributing updated post-hire forms to existing employees.

Ford & Harrison attorneys are experienced in assisting employers with complying with the EEOC’s reporting requirements. If you have questions regarding the revised EEO-1 Report form or need assistance updating your policies and procedures, please contact the Ford & Harrison attorney with whom you usually work or Karin Verdon, 303-592-8865,  Michelle Harkavy, 901-291-1533, or Teri Thompson, 312-960-6123.