Legal Alert: Reminder – 2007 EEO-1 Filing Deadline is Approaching: Employers Must Use New Report Form

Date   Sep 24, 2007

This is a reminder that covered employers are 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 a reminder that covered employers are 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. The EEOC will not require employers to resurvey current employees to obtain information on the new race/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 race/ethnicity groupings.

What is an 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.

For the purposes of the EEO-1 Report form, the EEOC defines employee as:

any individual on the payroll of an employer who is an employee for purposes of the employer’s withholding of Social Security taxes except insurance sales agents who are considered to be employees for such purposes solely because of the provisions of 26 USC 3121 (d) (3) (B) (the Internal Revenue Code). Leased employees are included in this definition. Leased Employee means a permanent employee provided by an employment agency for a fee to an outside company for which the employment agency handles all personnel tasks including payroll, staffing, benefit payments and compliance reporting. The employment agency shall, therefore, include leased employees in its EEO-1 report. The term “employee” SHALL NOT include persons who are hired on a casual basis for a specified time, or for the duration of a specified job (for example, persons at a construction site whose employment relationship is expected to terminate with the end of the employee’s work at the site); persons temporarily employed in any industry other than construction, such as temporary office workers, mariners, stevedores, lumber yard workers, etc., who are hired through a hiring hall or other referral arrangement, through an employee contractor or agent, or by some individual hiring arrangement, or persons (EXCEPT leased employees) on the payroll of an employment agency who are referred by such agency for work to be performed on the premises of another employer under that employer’s direction and control.

How Has the Report Changed?

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

  • Moved “Hispanic or Latino” to a separate reporting category on the Report. Employees reported as “Hispanic or Latino” are not to be reported under any of the other race/ethnicity groupings;
  • For the other existing race/ethnicity groupings, divided “Asian or Pacific Islander” into the two separate groupings 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 these other race/ethnicity groupings (i.e., 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 category are the following race/ethnicity 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 groupings

Employees who do not self-identify (or are not identifiable) as Hispanic or Latino must be reported in one of the above race/ethnicity groupings. Employees who do self-identify (or are identifiable) as Hispanic or Latino (defined in the instructions for completing the Report 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 race/ethnicity groupings.

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

  • “Executive/Senior Level Officials and Managers” – those who plan, direct and formulate policy and provide the overall direction of the organization; and
  • “First/Mid Level Officials and Managers” – those who direct implementation or operation within the parameters established by Executive/Senior Level Management.

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

Penalties for failure to file EEO-1s can include a court order requiring future filing and, for federal contractors, record keeping violations with remedies up to debarment.

How Do The New EEO-1 Race/Ethnicity Groupings Impact Federal Contractors?

Federal contractors who are required to compile and update affirmative action programs (AAPs) in accordance with EO 11246 should be aware that the OFCCP recently issued an “Interim Guidance” on the new EEO-1 categories. The Guidance acknowledges that the EEOC has revised the EEO-1 Report form while the OFCCP currently requires contractors to collect and maintain information about the gender, race, and ethnicity of their employees in the five race/ethnicity groupings used on the previous EEO-1 Report.

The Guidance indicates that the OFCCP is drafting proposed amendments to the recordkeeping and AAP regulations designed to require the use of consistent race/ethnicity groupings in the EO 11246 program. The agency plans on publishing its proposed regulatory changes in the Federal Register for a sixty-day public comment period in the near future. It will review and consider the public comments before deciding on the final race/ethnicity groupings contractors will be required to use under EO 11246.

The OFCCP acknowledges that some contractors have taken steps to develop and implement new data systems for collecting and reporting data required by the revised EEO-1 Report, while other contractors have either delayed implementation, awaiting further instructions from the OFCCP, or faced difficulty in making the required system changes. Thus, according to the Guidance, until the OFCCP issues final rules and guidance, the agency will not cite a contractor for non-compliance solely because it utilizes the race/ethnicity groupings required by the revised EEO-1 Report when preparing its AAP. Contractors also are permitted to prepare their AAP using the race/ethnicity groupings provided under OFCCP's current regulations, which are those used on the previous EEO-1 Report.

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.