Whether or not the U.S. Equal Employment Opportunity Commission’s (EEOC) plan to revise EEO-1 reports to also require reporting of wages and hours worked ever comes to fruition, filing accurate EEO-1 reports is important—especially for federal contractors and subcontractors.
Why is Accuracy Important?
Employers are required to certify the accuracy of their EEO-1 reports and that they have been prepared in accordance with the instructions. It is a violation of federal law to make a willfully false statement on the report, and such falsification is punishable by fine or imprisonment. Also, the Office of Federal Contract Compliance Programs (OFCCP) uses the information included in EEO-1 reports to select federal contractors and subcontractors for compliance evaluations (i.e., audits). In addition, during a compliance evaluation, the OFCCP uses contractors’ EEO-1 reports to conduct trend analyses on the direction of changes in the minority and female composition of a contractor’s workforce or in a particular EEO job category. Significant unexplained changes (either expanding or contracting) often lead to further investigation by OFCCP.
Who Must File EEO-1 Reports?
Not all U.S. employers are required to file EEO-1 reports. Only private employers subject to Title VII of the Civil Rights Act of 1964, as amended, who answer yes to one or more of the following three questions must file:
- Does the entire company have at least 100 employees in the payroll period for which you are reporting?
- Is your company affiliated through common ownership and/or centralized management with other entities in an enterprise with a total employment of 100 or more?
- Does the company or any of its establishments: (a) have 50 or more employees AND; (b) is not exempt as provided by 41 C.F.R. Section 60-1.5; AND either: (1) is a prime government contractor or first-tier subcontractor, and has a contract, subcontract, or purchase order amounting to $50,000 or more; or (2) serves as a depository of Government funds in any amount or is a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Savings Notes?
There is no religious exemption for filing EEO-1 reports.
Who are Considered “Employees”?
The term “employee” is defined as any individual on the payroll of an employer who is an employee for purposes of withholding Social Security taxes. This includes full-time and part-time employees, apprentices, and on-the-job trainees. The term “employee” does not include persons hired on a casual basis who are temporarily employed for a specific time or for the duration of a specified job. Leased employees are individuals provided to a company by an employment agency for a fee. Leased employees are to be included in the employment agency’s EEO-1 report.
Which Employers are Exempt From Filing?
Employers that are not subject to Title VII of the Civil Rights Act of 1964, as amended, are not required to file EEO-1 reports. This group includes any employer with fewer than 15 employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Other employers exempt from filing include:
- State and local governments
- Primary and secondary school systems
- Institutions of higher education
- Indian tribes
- Tax-exempt private membership clubs, other than labor organizations
- Companies headquartered in Puerto Rico, the Virgin Islands, and other American protectorates
Parent Companies and Their Subsidiaries Must File Together
A “parent company” is defined as a company that owns all or a majority of another company. Each parent company and all of its subsidiaries must report together by establishment.
What is an “Establishment”?
An “establishment” is an economic unit which produces goods or services, such as a factory, office, or store. An establishment is typically a single physical location engaged in predominantly one type of economic activity.
Businesses at different physical locations, even though engaged in the same business, must be reported as separate establishments. There are exceptions for the construction, transportation, communications, electric, sanitary services, and oil and gas industries whereby it is not necessary to report separately for each individual site, project, or field. These industries are only required to report as establishments relatively permanent main or branch offices, terminals, or stations.
Employers With Multiple Companies Sharing the Same Address, NAICS Code, and EIN Number Must Be Combined Into One Establishment Report
Beginning with the 2015 EEO-1 report, employers with multiple companies located at the same address and having the same North American Industry Code System (NAICS) code number and Employer Identification Number (EIN) are required to report all of these companies in the same establishment report, even if the different companies are genuinely separate legal entities.
What is an EIN? What is an NAICS Code?
An Employer Identification Number (EIN), also known as the Federal Employer Identification Number (FEIN), is a unique nine-digit number assigned by the Internal Revenue Service (IRS) to business entities operating in the United States for purposes of identification.
The NAICS identity codes define establishments based on the activities in which they are primarily engaged. NAICS is a self-assigned system, meaning employers select the code that best describes their business. You may determine your company’s appropriate code by using the NAICS free online tool.
Where Do You Report Telecommuters and Field Employees?
Employees who work at home or in the field are included in the report for the location or establishment to which they directly report. Many employers include all telecommuters and field employees in the Headquarters Report. However, only those telecommuters and field employees who report directly to Headquarters should be included in the Headquarters Report.
How Many Reports Must Be Filed?
Single-establishment employers file only one report (Type 1 report). Multi-establishment employers file the following reports:
- A Headquarters Report (Type 3 report)
- An Establishment Report for each location with at least 50 employees (Type 4 report)
- An Establishment Report for each location with fewer than 50 employees (Type 8 report) or a report that includes all employees at locations with fewer than 50 employees (Type 6 report), known as an establishment list or grid.
- A Consolidated Report
Multi-establishment employers must file a separate Headquarters Report (Type 3 report), even if the headquarters employs fewer than 50 employees.
Multi-establishment employers with small locations file either a Type 6 or Type 8 report—not both.
The Consolidated Report includes employees from the Headquarters Report, plus all Type 4, Type 6, and/or Type 8 reports filed. It is prepared automatically for employers that file online.
What if You Lose Your Password and/or Login Information?
What if Your Company Contact Person Changes?
When your company contact person changes, you must submit a letter to the EEO-1 Joint Reporting Committee (JRC) at email@example.com. The letter must be printed on company letterhead and signed by an authorized company representative, indicating the new contact person’s name, title, telephone number, and email address, as well as your company number.
What if You’ve Merged With Another Company Since the Filing of Your Last EEO-1 Report?
Send an email notification to firstname.lastname@example.org, including the names and company numbers of all companies affected by the merger, the name and address of the corporate headquarters, and the name of the new company. Wait to file your EEO-1 report until you hear back from the JRC.
What if You’ve Acquired a New Company Since You Last Filed Your EEO-1 Report?
Email email@example.com. Your email notification should include the name, address, and company numbers of both the acquiring and acquired companies. If a company acquired a small company that otherwise would not be required to file the EEO-1 report, or a company that had not previously filed an EEO-1 report, the acquiring company may proceed with adding the establishment(s) and filing for the new employees without waiting for a response from the JRC.
What if Your Company Experienced a Spin-off Since You Last Filed Your EEO-1 Report?
Email firstname.lastname@example.org. Your e-mail should include the name, address, and company number of the current parent company. Additionally, include the establishment considered to be the new headquarters that should be spun off in the employer EEO-1 database with a list of all physical addresses for the new company and wait to hear back from the JRC.
What if You Need an Extension to File the EEO-1 Report?
Employers will receive an automatic one-time, 30-day extension by sending an email to email@example.com. It is better to file late than to have to correct an incorrect report.
Common Errors Made in EEO-1 Reports
- Failing to List Employee Race or Gender. Employers must provide a race/ethnicity and gender for every employee in their EEO-1 reports. Self-identification is the preferred method for gathering this information. However, if employees refuse to self-identify, employers may acquire this information from other employment records or based on visual observation.
Employees who self-identify as Hispanic or Latino and another race are to be classified as Hispanic, not two or more races. Definitions of the EEO-1 race groups are included in the EEO-1 Instruction Booklet at Section 4/Race and Ethnic Identification.
- Assigning an Incorrect EEO Job Category. It is important that employees be placed in the correct EEO job categories (e.g., professionals, technicians, etc.) based on their job duties. The EEOC has created an EEO-1 Job Classification Guide to assist employers. There is also helpful information included in the EEO-1 Instruction Booklet at Section 5/Description of Job Categories.
If you make significant changes in the EEO job categories assigned to your job titles from one year to the next, consider briefly explaining the reason for the changes in Section F/Remarks.
- Submitting Reports for Federal Subcontractors Below Tier 1. Only federal contractors and first-tier subcontractors with 50 or more employees are required to file EEO-1 reports.
- Filing Reports When Federal Contracts are Less Than $50,000. Federal contractors and first-tier subcontractors with 50 or more employees must hold a current single federal contract or subcontract of at least $50,000. Contractors or subcontractors are not required to aggregate multiple federal contracts to reach the $50,000 threshold.
- Incorrectly Indicating You are a Federal Contractor or Subcontractor. Section C, question 3, of the EEO-1 report asks whether the reporting entity holds a federal contract or first-tier subcontract. This question should be answered “yes” or “no” for each report filed. The response to question 3 will automatically default to “yes” if a yes response was provided on any prior report. If a reporting entity is not a federal contractor or first-tier subcontractor, it will not want to erroneously indicate that it is because it will then be identified as a contractor and subject to potential selection for a compliance evaluation (audit) by OFCCP. It is much easier to answer question 3 correctly than to expend the time, money, and energy to prove to OFCCP that you are not a contractor.
- Maintaining Records. Private employers without federal contracts or first-tier subcontracts of at least $50,000 must keep certified copies of their EEO-1 reports for one year. Federal contractors and first-tier subcontractors with contracts of $50,000 or more must keep copies of their certified reports and the underlying data used to prepare the reports for at least three years. The reports are currently maintained in the system for 10 years.
Employers will not be required to file EEO-1 reports in 2017, as we await the fate of the proposed revisions to the EEO-1 reporting requirements. Employers should, however, use this time to review their data to ensure every employee is assigned a race/ethnicity and gender and assigned to the correct EEO job category based on their job duties. No matter what the future holds, this information will be critical for filing accurate EEO-1 reports.