EEOC Plans to Publish Proposal to Collect Pay Data in January 2025
The EEOC listed a total of six items. We discuss below the three not yet completed items relevant to our readership.
NEW Proposed Amendments to EEOC Regulations to Provide for Pay Data Collection Slated for January 2025
The EEOC plans to propose a rulemaking regarding its “authority to collect pay data or related information as reasonable, necessary, or appropriate for the enforcement of Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963” (RIN: 3046-AB15). The anticipated proposal would amend the EEOC’s regulations at 29 CFR Part 1602. The Commission noted it “would seek public comment on this proposal.” The agency set a January 2025 target date for its NPRM.
In March 2024, we reported that in a FAQ, the EEOC noted steps it had taken toward future pay data collection via an EEO-1 Survey Component 2 Hours Worked and Pay Dating Reporting Requirement. See FAQ #6 in the FAQ section posted here.
Note: Should the Republicans win the White House in the November 5, 2024, Presidential election, the Republican President would likely then kill the proposal. While the next President will not be sworn in until January 20, 2025, if the EEOC has not published its NPRM on pay data collection by that date, the new incoming President could stop it by immediately appointing (as is the President’s prerogative per Title VII of the 1964 Civil Rights Act) what would then likely be the sole Republican on the bi-partisan Commission at that time (Andrea Lucas: term ends July 2025) to Chair the Commission.
The Republican Chair in this imagined scenario could then stop publication of the Pay Data Reporting NPRM (if not yet published) or stop publication of a final Rule by simply refusing to convene Commission meetings, a prerogative of the Chair. Without Commission Meetings, the Commissioners cannot vote to bring new policies into being.
Then it would not be until July 2026 when the Republican President (in this imagined scenario) could control the Commission. The Republican President would first have to fill Republican Commissioner Keith Sonderling’s seat. Commissioner Sonderling’s term will expire at the end of July 2024 (this month) although the Commissioner could extend his stay until December 31, 2024, if he chose to do so and in the absence of a Republican replacement nominated by President Biden. (Spoiler Alert: President Biden will not move to fill Sonderling’s seat either with Commissioner Sonderling (if he were interested in staying; we do not think he is) or with a Republican nominee who would have to then go through the (currently) lengthy wait for Senate approval of his nomination.
Thereafter, upon filling Commissioner Sonderling’s seat with a Republican Commissioner, the new President would have two Republican Commissioners out of 5 on the Commission. So, the new Republican President would have to wait until July 2026 to take control when he could appoint a Republican replacement to (current Chair) Burrow’s (D) seat when she terms out.
HOWEVER, key to timely replacing both Commissioner Sonderling and Chair Burrows with Republican Commissioners would also be Republican control of the U.S. Senate effective next year. That may be the easiest part of the calculus for any inbound Republican Commissioners since most political pundits on both sides of the aisle now predict that Republicans will win the Senate in November. If so, Republicans would take control of the Senate in the first week of January 2025 when the Senate will first convene to commence the 119th Congress (2025-2026).
However, the first order of business would be to elect a new Republican Senate Majority Leader. That could take some time. Mitch McConnell (R-KY), the current Ranking Republican in the Senate (and former Republican Majority Leader for 12 years during the Bush and Trump years), has announced his intention to not run again for the Majority Leader position. Nonetheless, he intends to remain in the U.S. Senate (his health permitting) to finish his current Senate term expiring when the Senate returns from recess in January 2027 to commence the 120th Congress.
So, after all is said and done, the EEOC’s Pay Data Reporting proposal will likely again fail if a Republican is in the White House beginning January 20, 2025.
EEOC’s Goal to Publish Proposal to Amend Regulations on Exemptions to Recordkeeping and Reporting Requirements Moved Back 13 Months
The EEOC intends to amend its regulations regarding certain recordkeeping and reporting requirements under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and the Genetic Information Nondiscrimination Act of 2008. Specifically, the Commission plans to revise these Rules to delegate authority to grant or deny hardship exemption applications, to set forth the procedure to apply for exemptions, and to provide a non-exhaustive list of criteria to be considered to evaluate exemption applications. The new Spring 2024 Agenda set a December 2024 target date for this NPRM (RIN: 3046-AB28), which is 13 months behind the Fall 2023 Regulatory Agenda that originally set a November 2023 target date.
Proposal to Amend EEOC Regulations Regarding Electronic Posting of Notice Poster Moved Back 7 months
In October 2024, the EEOC plans to publish an NPRM to amend its regulations regarding the electronic posting of the “Know Your Rights” Poster (see our story on the most recent update to this poster here). Specifically, the Commission intends to amend its regulations at 29 CFR §1601.30 and §1627.10 to clarify the notice posting requirements related to remote, telework, and hybrid workplaces. Under this NPRM, the EEOC will propose to allow and/or require covered entities to post electronically informational notices explaining the protections against employment discrimination and providing contact information for individuals to file a charge of discrimination with the Commission under the laws it enforces (RIN: 3046-AB29). The October 2024 target date is seven months behind the previous March 2024 date set forth in the Fall 2023 Agenda.