Levy Employment Law Blog

25

November, 2022

Sometimes We All Need a Little Help – and a Cooperative Dialogue with our Employer to Get Us There

I have been thinking a lot about managing physical and mental impairments recently. Not the permanent ones, but the ones that may come on suddenly and impede what we consider to be our “normal” functioning ability. The subject is on my mind for two reasons. First, because in the past few years we have heard of so many more instances of workers facing mental health or substance abuse issues, or newly diagnosed as adults with conditions like ADHD for which they are being prescribed medications or other treatment. Second, because I have been facing down my own physical and mental health issue – a chronic medical condition that at its most severe can produce hours-long, paralyzing vertigo attacks and hearing loss.

In my case, prior to the pandemic I thought I had my condition largely under control through a combination of diet and medication. Then I took the weight of the world on my shoulders as we heard the progressively more bleak stories of the impact of COVID-19, my vertigo attacks returned, and they became more frequent, less predictable and more debilitating. I lost 50 percent of my hearing in one ear, and the status quo clearly was not sustainable. I took the rare step of opting for surgery five weeks ago, a minor surgery with great odds of stopping the vertigo attacks (and thereby stemming the hearing loss).

I had anticipated a weekend for my recovery from surgery, and allowed a cushion of two additional days when I was scheduled to be out for religious observance. I had a roster of ongoing matters and deliverables, but no worries about working through all of them immediately following the holiday.  I didn’t even set an out-of-office message, figuring I could return any necessary calls or emails as soon as the anesthesia wore off.

The surgery went as planned. The recovery did not.  My weekend was spent sedated in the hospital, trying to make the world stop spinning. I rested at home over the holiday and then tried to resume my work in short intervals, from my recovery bed. My colleagues covered for me on some matters, and some I pushed off or worked through at less than my regular pace. I built in downtime between my meetings so I could just rest, give my eyes a break, and regain my strength for my next meeting or project. I had a running list of all my deliverables and gradually made my way through completing them.

By week four, the list had been reduced to just a few ongoing matters. But while I had seen gradual, albeit painfully slow, improvement in my first three weeks, I began to backslide. I was stretching out six hours of productive work over a 10 to 12 hour daily window, and by 8 pm, a milder version of the old vertigo was returning, leaving me helpless to do anything for 45 minute intervals and so exhausted thereafter that I had to call it quits for the night. By the weekend, the vertigo was back with a major roar, sudden, fierce and completely debilitating attacks that had me violently ill and confined to my bed. Clearly something had to change.

This past Monday, I confronted my own situation. I called out the areas in which I was not delivering at my expected level – the blog articles I had not even brought myself to start writing, the training materials I had only half-developed, the investigation I’d had to decline taking on for a new client and the one that was in danger of stalling – and I took some sage advice from a respected teacher. I put myself on medical leave (you can do that when you own the business). I emailed clients to request to push out some deadlines, I set out-of-office messages on my phone and email, I went for a walk outside, and then I went to bed. I saw my doctor the next day, who has put me on a new medication that is so far keeping the vertigo away. I am continuing to walk outside each day, I am accepting the care of my family and friends, and until now I had almost entirely retired my laptop and work emails.

And it is working. I feel slowed by the medication, but freed of the oppressive weight of the vertigo I was perpetually fighting off. I am not entirely steady on my feet, but my walks on flat terrain help to clear my head. And ideas and inspiration to write, the lifeblood of my professional existence, are flowing once again.

Perhaps this is too much disclosure of personal information. Perhaps I have spent just a few too many hours listening to Moth hour story podcasts on National Public Radio this past month when the vertigo left me unable to absorb any form of visual engagement. But I share all this because, while I hope my particular ordeal is unique, I am afraid that the themes of wanting to continue to deliver at work, not wanting to admit the scope of the problem, not wanting to accept too much help, and not giving in to “defeat” are more universal and more prevalent in our workplaces than we may recognize.

For those of you in circumstances like mine, I see you and I empathize. But I also want to educate because going it alone is not your only option. If you are suffering from a serious medical condition, it may qualify as a “disability” under federal law and even more likely so under the law in states like New York, Connecticut, New Jersey and others. What that means is that you are entitled to help to enable you to perform the essential functions of your job. In New York City they call it a “cooperative dialogue” process and I like the friendliness of that phrasing.

You will likely be asked for documentation from your health care provider, but most employers I work with genuinely want to help and support you. Certainly the work needs to get done, but particularly if yours is just a short-term debilitating condition, and particularly if you are part of a larger organization, it may be possible to temporarily shift certain projects or responsibilities to colleagues who can help cover. Sometimes deadlines are more aspirational than essential, and they can be shifted for compelling circumstances. And sometimes the best thing you can do for yourself and everyone around you is to just step away for a little bit, take a leave of absence and allow your body and mind the time and space to heal.

Marvel characters aside, none of us are superheroes. All of us, at some point, face circumstances usually not of our choosing that interfere with the career trajectory, performance standards and aspirations that we set for ourselves. If you are like me, the hardest step in that situation is recognizing our own limitations – to ourselves, and to those we work with. But health issues do not typically resolve themselves just by pretending they do not exist, and the caliber of work we can deliver under trying circumstances often does not meet our own lofty standards.  Make the call, and if you need it, ask for the help.

By Tracey I. Levy

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24

October, 2022

Mandated Pay Transparency – the Public Posting of Salaries Being Offered – Is Imminent in NYC and CA

At the onset of the pandemic, when businesses were being shut down, new government edicts were materializing by the hour and it felt like the world had turned on its head, I heard from a great many clients, each trying in their own way to sort through the confusion. There was a level of chaos then that I hope never again to experience at quite that level in my professional career.

But I have advised and managed through other inflection points – times at which a jurisdiction (most typically NYC, thank you to my home stomping grounds) has rolled out a substantial change in employment laws that, while covered in advance by lots of law firms and journalists, still caught many employers by surprise. The advent of paid sick leave did that – with rules and guidance issued by the city literally at the eleventh hour before the effective date and employers that already had some form of paid sick leave benefit scratching their heads to discern how what they offered met (or more often did not meet) all that the new law required. And years before that it was the laws prohibiting smoking in the workplace – something that has now become a fairly standard workplace norm was radically shocking when it rolled out, with exceptions for private enclosed office spaces, signage mandates and a plethora of legislative compromises.

We are again at one of those inflection points, and this time the target is employer’s hiring practices. Next week New York City employers will face round one of the change, as November 1 brings with it a mandate that every job posting for a position that could be filled in the city (including by a remote worker) must specify the wage or job range for the position. That mandate takes effect in Westchester County on November 6 and for the entire state of California on January 1.

January 1 also will bring round two to New York City – a requirement that the myriad tools employers may now be deploying for their hiring practices undergo anti-bias testing and that those results, plus a plethora of other information, be made public on employers’ websites and through various notice requirements to job applicants. These requirements will cover the most basic of AI tools, like those that perform key word searches to help filter through (and reject) stacks of job applicants, to far more sophisticated systems that rate candidates’ suitability relative to designated hiring criteria or even conduct and analyze video interviews of prospective applicants.

One client recently commented that this is the full job security for recruiters law, and at least in the short-term it may be. New York City seems to place far greater faith in the unbiased (or at least more modestly scaled) feedback of recruiters and hiring managers than it does in technology that can be programmed to whittle applicant pools down to the choicest of candidates in the blink of an eye.

I have been writing and speaking of these legal changes for months and want to call out some of the resources you can reference for additional information.

  • For background on the basic elements of the pay transparency laws, see page 1 of Takeaways from Summer 2022. For similar background on the AI law, see page 5 of Takeaways from Winter 2021/22. And for the Westchester County piece of this, see my most recent posting on the WHRMA blog.
  • More in-depth articles that we have posted on each of these subjects for the Levy Employment Law blog include: NYC pay transparency law, NYC pay transparency guidance, AI tools, and pending NYS pay transparency legislation.
  • For some of the collateral consequences employers should be anticipating from pay transparency, see my Forbes interview with award-winning executive coach and author Dr. Ruth Gotian, and my more recent interview for the Employment Law column of SHRM, the Society for Human Resource Management.
  • For the broader context of how pay transparency aligns with the 50-year history of pay equity initiatives in the U.S., our firm delivered a continuing legal education program with the Federal Bar Association and MyLawCLE that can be accessed here.

And there are more articles to come, as we help our clients work through the practical applications and implications of these laws. I have been thinking through a range of options employers may wish to consider for their own organizations that get ahead of the pay transparency issue. Yes, a pay equity audit is a good start – as so many legal practitioners have been advising – because the first step in solving a problem is knowing whether one exists. But options and opportunities go well beyond that initial step.

Also, there is the nagging question of whether any of this new legislation actually is addressing the right problem. There is reason to believe it is not, but also options (albeit challenging ones) for how to truly get to the thorny underlying issues. Keep checking with me as we explore those ideas, and please consult employment counsel if you have any questions about how the new hiring laws apply to your organization.

By Tracey I. Levy

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7

October, 2022

NYC Employers May Want to Rethink the Value Cost Proposition of Their AI Hiring Tools

All employers in New York City that rely on artificial intelligence (AI) in their hiring processes are potentially subject to new requirements, beginning January 1, 2023, that they ensure their AI tool has undergone a “bias audit” within the past year, provide advance notice to job applicants regarding the use of the tool, and publicly post on the employer’s website a summary of the results of the most recent bias audit and distribution data for the tool.  The law imposes hefty civil penalties on employers that fail to comply.

For months, employers have viewed this new requirement (the first of its kind in the country) with both puzzlement and foreboding, awaiting further guidance from the city as to what exactly it means by a bias audit and who should be providing the requisite certification.  The New York City Department of Consumer and Worker Protection has issued proposed rules to address those questions, with a public hearing scheduled for 11 am on Monday, October 24, 2022.

The proposed rules are notable in:

  • their definition of when an AI tool (which they refer to as an “automated employment decision tool” or “AEDT”) is subject to the new law;
  • their definition of who needs to conduct the bias audit;
  • what data needs to be analyzed and what information must be posted on employers’ websites; and
  • requirements related to how the data should be posted and additional notices to be provided.

When is the use of an AI tool subject to audit

The proposed rules narrow the scope of covered technology through their definition of an AEDT.  The law states that a bias audit is required whenever an AI tool is used “to substantially assist or replace discretionary decision making.”  The Department of Consumer and Worker Protection is proposing that the standard of substantial assistance or replacement applies in three situations:

  • when the employer relies solely on a simplified output (score, tag, classification, ranking, etc.), with no other factors considered;
  • when an employer uses such a simplified output as one of a set of criteria and weights that output more than any other criterion in the set; or
  • when an employer uses a simplified output to overrule or modify conclusions derived from other factors including human decision-making.

In other words, if the employer is relying on the AI tool to do the heavy lift on screening applicants at any stage of the hiring process, then it will likely need to comply with the bias audit requirement.  If, on the other hand, the AI tool is used more casually, as but one factor for consideration in screening candidates or perhaps to help flag those who may be the best match to the job description, and it carries no more weight than other criteria, then it would apparently fall outside the audit requirement.

Notably, for employers that are dabbling with AI and still relying mostly on human decision-making, as the employer’s AI tool gets “smarter” so to speak and better understands the types of factors it should be looking for when screening applicants, employers that may initially have been exempt from complying with the bias audit requirement will need to revisit that analysis.  Once the tool becomes a relied-upon and predominant factor at any stage of the screening process, the proposed rules indicate that the bias audit requirement will apply.

Who should be conducting the bias audit

The proposed rules state that an “independent auditor” should conduct the bias audit, meaning someone that is not involved in using or developing the AI tool.  This means that even if the employer did not develop the tool, as the user it cannot rely on its own in-house staff to audit the results of the tool for possible bias.  And if the tool is provided by a vendor, then the proposed rules seem to contemplate that the vendor will retain an independent third-party to conduct the audit.

What data needs to be analyzed

The third-party conducting a bias audit is being tasked with calculating two sets of numbers:

  • the “selection rate” – calculated by dividing (1) the number of individuals in a particular gender, racial or ethnic category who were selected to advance to the next level in the hiring process or were assigned to a particular classification by the AI tool by (2) the total number of individuals in that gender, racial or ethnic category who had applied or were considered for the position; and
  • the “impact ratio” – for which the calculation depends on whether the AI tool is being used to select and eliminate people, or whether it is being used to score and categorize them. If the tool handles selections, then the impact ratio is calculated as (1) the selection rate for a specific category divided by (2) the selection rate for the most selected category.  If rating or scoring candidates, then the impact ratio is calculated as (1) the average score of all individuals in a category divided by (2) the average score for the most selected category.

This is fairly standard statistical analysis for claims of adverse impact in employment practices, which is meant to flag employment practices that appear neutral but have a discriminatory effect on a protected group.  The EEOC and other government agencies typically apply a four-fifths rule or 80 percent guideline, whereby an impact ratio of less than 80 percent raises a red flag that there is an adverse impact.  Notably, though, the proposed rules require only that employers post the selection rate/average score and the impact ratio.  Nothing in the law or the proposed rules requires employers to educate job applicants on what the scores mean.

How the data should be posted

Employers are required to make available on their websites:

  • the date of the most recent bias audit;
  • a summary of the results, including selection rates and impact ratios for all categories; and
  • the date the employer began using the AI tool.

The proposed rules require that this posting be clear and conspicuous on the careers or jobs section of the employer’s website, but they allow employers to meet that requirement with an active and clearly-identified hyperlink to the data.

Additional notice requirements

Employers are also required, under the law, to provide candidates with at least 10 business days’ notice that they will be using an AI tool, the job qualifications and characteristics that the tool will assess, and allow candidates to request an alternative selection process or accommodation.  The proposed rules state that this notice can be posted on the employer’s website, included in the job posting, or individually distributed to job candidates.

Finally, employers must additionally provide employees with notice as to the type of data collected by the AI tool, the source of that data, and the employer’s data retention policy.  The proposed rules provide that employers either need to post the information on their website, or post notice to candidates on their websites that the information is available upon written request (and then comply with those requests within 30 days).

Next steps for employers

Employers that would like to comment on the proposed rules can use the contact information in the rules to call or Zoom in.  With the January effective date rapidly approaching, employers should review what AI tools they currently use in their hiring processes and how they are used.  If the tools are provided through a vendor, then the employer should consult with the vendor on whether it has conducted a bias audit and what information it can share as to the results of the audit.  If the employer has developed its own AI tools, it should look for an independent third-party that can perform the requisite selection and impact analysis.  Employers should also plan to make space on their websites for posting the results of their audit and the various notices required under the law.

Flummoxed employers are encouraged to seek legal advice on complying with the new law.  Employers may also want to revisit their hiring processes and determine whether the efficiencies gained through the tools exceed the administrative burdens of the New York City law.  That analysis will differ across industries and organizations.

By Tracey I. Levy

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19

September, 2022

Workplace Investigations: Why Get a Written Report

One of the thorny process questions that eventually arises in any workplace investigation is whether and how to memorialize the findings and conclusions from the investigation. Is it sufficient just to save the notes from the investigation interviews in a file? How about a letter notifying the key parties that the investigation has been closed and the concerns raised were or were not substantiated? Perhaps an executive summary would be helpful to memorialize the concerns raised, the process followed, and the final conclusions? Or should you also capture the factual information considered and assessed in reaching those conclusions?

Retaining Notes
Yes, the notes should be saved from all investigation interviews. So should any other documents, photos, data, recordings, video or other electronic communications that may have been considered. All those items are important to reflect what issues were raised, what information was gathered, and what support exists for the concerns.

Notifying the Parties
Yes, you should notify the key parties whether the concerns raised were or were not substantiated. It is even more helpful if you inform all the parties – not just the complainant(s) and respondent(s) – that the investigation has been closed. Those communications may be verbal or written, depending on your organization’s practice and best determined with the guidance of legal counsel.

What is most important is that the communications actually occur. It provides closure to the parties and those involved in the investigation. That way they know that the issues were considered and appropriate actions have been taken. You thereby enhance confidence in your process — that concerns raised do not fall into a “black hole.” You also stem the tide of gossip.

When there is no follow-up, people wonder whatever happened with the matter that x person raised. Worse still, people conclude that because they heard nothing further it must mean that the organization did nothing with the information that those individuals had provided. All your hard work to investigate becomes for naught.

Drafting an Executive Summary
It often is helpful to prepare at least an executive summary of the investigation that was conducted. The executive summary should:
• Outline the concerns raised and when they were brought to the organization’s attention;
• Identify who was interviewed and their job titles;
• Identify what documents or other information was reviewed; and
• State the conclusions with regard to each concern raised and the key findings in support of those conclusions.

The executive summary serves essentially as a road map.  Decisionmakers can reference it as a basis for considering appropriate responsive action. Should a concern arise in the future involving one or more of the same parties or work group, a subsequent investigator can similarly reference the executive summary to understand the scope of the prior investigation.

While helpful, an executive summary by definition lacks detail. It does not summarize the information provided by each interviewee, it includes limited information about where conflicting accounts were provided and how credibility was assessed, and it most certainly cannot “stand on its own,” should the underlying complaint proceed to an adversarial posture. For that level of detail, you need a full written report.

Advantages of a Written Report
A written report should start with an executive summary and offers all the benefits of that as a road map to the issues, process followed, and conclusions. The written report should go further, though, and tell the full narrative of what concerns have been raised, what the interviewees said in regard to those concerns, where documentary or other evidence was relevant to the concerns, what conclusions were reached, and how those conclusions were derived. In contrast to the executive summary, the written report should provide sufficient detail such that it is not necessary for the investigator to provide any additional information.

A written report thus reflects the investigator’s findings and analysis, and thereby supports the conclusions reached. It memorializes a considered process and demonstrates due diligence by the organization. The report also allows decisionmakers to carefully consider appropriate action, consistent with the investigator’s findings.

Not every workplace investigation results in the drafting of a full written report. Cost and time often are significant factors, as a written report is not something that can be knocked out in a few hours. Where an investigation has found sufficiently serious violations of policy that the organization has decided to terminate the respondent’s employment, some organizations conclude that no written report is necessary. The termination itself is viewed to demonstrate the seriousness with which the issues were considered and addressed. Other organizations in that same situation will conclude that a written report is very much needed to memorialize why the respondent’s employment was terminated. That is particularly so if the terminated individual would have been eligible for some severance package, stock award or bonus, or is to be stripped of a prior award, based on whether employment was terminated “for cause.”

A written report offers other benefits. Sometimes an organization may disclose portions or all of the report to a complainant’s attorney and can use the report to further settlement discussions. Other times, the persuasion is internal, and the report may be impactful in garnering support from senior leaders for changes within the organization.

Ultimately, whether to request or prepare a written report is an individualized determination. Workplace investigations, done properly, take time and care. Organizations that commit that level of effort would do well to ensure they have memorialized their efforts in some fashion. That written record can inform future actions relevant to the individuals and group involved and the organization as a whole, and it can protect the organization in the event a matter proceeds to litigation.

By Tracey I. Levy

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6

September, 2022

National Panel Recommends EEOC Collect Even More Employee Data as Solution to Inadequacies of Past Pay Data Collection

In 2017 and 2018, employers with 100 or more employees were required to participate in what was effectively a grand experiment.  In addition to filing an annual EEO-1 form with the Equal Employment Opportunity Commission (EEOC), which collects certain demographic data, broken into job categories, related to their workforces, they were required to report a plethora of additional data pertaining to employees’ wages.  This “Component 2” data was collected with the intent of enabling the EEOC to identify disparities and address inequities in pay based on sex and race/ethnicity.

A recent report from the panel tasked with analyzing the usefulness of the additional data the EEOC collected is concerning in what it found and what it recommends.  It found that much data was gathered, but it is of little use for the intended analytical purposes.   It recommends gathering massive amounts of additional data — effectively subjecting every employer to a detailed, annual or bi-annual pay equity audit — as a long-term solution.

How We Got to This Point

The initial collection of the Component 2 data was halted by the agency in 2017, with the change in presidential administrations.  A subsequent lawsuit filed by the National Women’s Law Center reinstated the regulatory requirement.  This led to employers belatedly reporting, beginning in 2019, Component 2 pay data for reporting years 2017 and 2018.

The EEOC then asked the National Academies of Sciences, Engineering, and Medicine to examine the quality of the data for its intended use and to provide recommendations for future data collections.  A panel of the National Academies reviewed the data to determine its usefulness in three contexts:

  1. 1. as an initial step in EEOC’s assessment of individual charges;
  2. 2. to examine pay differences at the national level; and
  3. 3. to assist with employer self-assessment.

The panel has issued a nearly 300-page report, which essentially found that, as executed, the 2017 and 2018 Component 2 data is of limited use in meeting any of the EEOC’s three objectives.

Viability as an Assessment Tool

Limits identified by the panel in terms of the scope and range of data collected suggest it is a poor tool for initial assessment of whether to file an EEOC charge against an employer, and an equally poor tool for employers to engage in their own self-assessments.  In particular, the panel noted the following flaws, which hinder pay equity analysis:

  • Only wage data was collected, not overall compensation;
  • Reporting is by pay bands, which is less useful than individual-level pay data, especially for discerning anomalies among small employers and in the highest and lowest paying occupations;
  • Pay data is broken down into reporting for 10 job categories used by the EEOC for EEO-1 reports, but those categories are outdated and overly broad for purposes of making effective comparisons;
  • Hours worked data was not helpful.  It required extensive cleaning, more than was possible for the panel to complete for purposes of its report.  Also the hours worked did not delineate full-time, part-time and seasonal employees, or when employees were on paid leave, all of which affect the calculation of annualized pay;
  • Data was overly generalized demographically, notably with only a binary designation for gender and with delineations that combine race and ethnicity into a single list, allowing no separate designation for those of Hispanic or Latino national origin who identify as white.   Also, to the extent there are additional protected characteristics (pregnancy, age, disability, and veteran status) that fall within the EEOC’s enforcement remit, no data was collected for evaluation; and
  • Data did not reflect education, tenure, performance or other legitimate causes of pay differences, which the report noted “diminishes the robustness of data” for purposes of initial EEOC investigations.

The panel concluded that the data collected on the current Component 2 forms could be used to identify potential outliers, but only as an initial step to prioritize investigations and the allocation of resources.  In other words, it was better than nothing, but not very helpful in actually determining whether employees are being paid disparately for discriminatory reasons.

Viability to Examine National Pay Differences

The panel also noted several flaws in the quality of the data that limit its viability for examining pay differences at the national level.  Employers with fewer than 50 employees could opt out from the data reporting and many did.  Other smaller employers provided a more summary version of the data, known as “Type 6” (as was permitted under the EEOC’s regulations).  Type 6 reports listed salary data based on the total number of employees, without specifying sex, race/ethnicity, occupation or pay bands.  The panel found the resulting product so unhelpful that it excluded all “Type 6” data from its analysis.

Further flaws included numerous reporting errors, so much so that the panel excluded from its analysis more than one-third of the data provided.  In addition, the proportion of reporting establishments for 2017 that could not be aligned to reporting establishments for 2018 was statistically much greater than Census Bureau data on the proportion of establishments that had opened or closed in that time period.  The panel concluded part of the problem were inconsistencies in the identification numbers that establishments used on their reports, which hindered matching.  Also, professional employer organizations (PEOs) that were reporting for multiple, otherwise unrelated client entities, sometimes submitted the reports under the identification codes and industry categories applicable to the PEO itself, instead of breaking down the data to align with the codes and categories for their various clients.

The panel concluded that, once reviewed and cleaned up (which it repeatedly referenced as a necessary step), the reported data could be used to estimate raw pay gaps at the national level by sex, race/ethnicity and job category.  Here, too, the data collected thus fell short of achieving desired objectives.

Short-Term Recommendations

The panel proffered a series of recommendations for improvements that could be made in the short-term to maximize the efficacy of the data being collected.  These recommendations included:

  • Better outreach to enhance compliance;
  • Use of statistical weighting of data for analysis and reporting on a national or sub-national basis;
  • Combining the components of the EEO-1 reporting into a single data-collection instrument with a standard reporting period;
  • Carefully reviewing and cleaning the data before assessment;
  • Eliminating reporting for employers with less than 50 employees, but continuing to require multi-establishment firms to file a consolidated firm-level report that includes entities with fewer than 50 employees;
  • Requiring PEOs to submit data separately for each firm they represent, using the client firm’s industry code;
  • Allowing a method for employers to download and review responses before submission for quality control;
  • Collecting W-2 box 5 total compensation data, instead of box 1 wage data;
  • Adopting narrower pay bands, with more pay bands for top earners; and
  • Allowing a demographic category for individuals with more than one race and finding measures that recognize gender as non-binary.

Before any revisions are made to the form, the panel cautioned that field tests be conducted to assess the burden, data availability and questionnaire design.

Creating More Robust Data Collection

The panel suggested that, in the longer term, the EEOC can more effectively achieve its stated objectives if it reconsiders its current approach to data collection and implements substantial changes to its measures.  Rather than directing employers to aggregate their employee data into what it described as “legacy” aggregated job categories, the panel recommended a series of changes that would essentially amount to a pay equity audit of every covered employer.

This would be achieved through four key changes.  First, job categories would be delineated using the more detailed Standard Occupational Classification system for classifying occupations.  Second, individualized data would be distinguished based on status:

  • exempt and non-exempt;
  • part-time and full-time; and
  • seasonal or year-round,

with hours worked collected only for non-exempt employees.  Third, employers would be required to report individual-level data relevant to pay disparity analyses, including:

  • education;
  • job experience; and
  • tenure.

Fourth, the range of demographic data would be expanded to include age,  disability and veteran status.

Tackling Pay Inequities

The panel is correct that, were the EEOC to adopt most or all of the panel’s four recommended actions, it likely would have the data necessary to achieve its objectives of identifying which employers to target for enforcement actions and could examine pay differences on a national level.  But at what cost?

The panel theorized that the administrative burden of more individualized data reporting might prove to be less than that posed by the current EEOC job categories, because the EEOC’s categories do not align to any other government or employer reporting system.  While potentially saving employers one step, though, the panel’s suggestions would add numerous additional data fields, many of which are not currently tracked in a meaningful way by employers’ information reporting systems.  Recognizing that possibility, the panel suggested that bi-annual reporting might suffice and it stressed that any additional data reporting requirements should be field tested before they are adopted.

Beyond the administrative burden to employers, it is questionable whether the EEOC remotely has the capacity to massage all that raw data into a meaningful analysis.  Having lots of information is not helpful if you are not able to pull it together and extrapolate from it.

Most significant is the data privacy concern.  How do we as a society feel about providing the federal government with individualized data on the total compensation of each employee, together with their demographic data, performance ratings, skills and experience, tenure and other factors?  Even anonymized, the data gets to a level where some individuals will be identifiable.

More alarming still, the panel’s final recommendation was that, while protecting for confidentiality, the EEOC should strengthen its data sharing with the public and other government agencies.  So employers would not only be entrusting all this data to the EEOC, but should expect it would be shared with other government agencies, advocacy organizations of various sorts, and the general public.

Final Worrisome Thoughts

Currently pending before the Office of Federal Contract Compliance Programs (OFCCP) is a broad request under the Freedom of Information Act for all Component 2 EEO-1 reports filed by federal contractors from 2016 to 2020.  As there are a great many federal contractors, the OFCCP responded to this request by posting a notice in the Federal Register on August 18 and granting employers exactly one month to object to their data submission being released.  No individualized notice is being provided to potentially impacted employers, few of whom likely monitor that which is posted in the Federal Register.

The OFCCP’s handling of the currently pending FOIA request for Component 2 data does not bode well for employers or for employee data privacy, were the EEOC to broaden the pool of data that it collects.  Grounded in current, demonstrated government actions, employers and employees have reason for concern.

The objective of achieving employee pay equity is laudable, but the approach of providing massive quantities of data to the EEOC for purposes of analysis and enforcement is fraught.  Employers should watch for further action by the EEOC in response to the panel’s report.

By Tracey I. Levy

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