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Quick Hits
- The EEOC began emailing EEO-1 filers in mid-December noting that it had corrected programming errors that resulted in the swapping of employee numbers between the “Native Hawaiian or Other Pacific Islander” and “Asian” categories.
- The deadline for filing the 2022 EEO-1 periods was December 5, 2023, but the 2022 EEO-1 filing site remains open for additional filings until January 9, 2024.
- During the Failure to File phase, prior EEO-1 filers will continue to receive notices from the EEOC concerning their failure to file.
In order to avoid any concerns over this EEO-1 filing platform error, the EEOC told filers to discard PDF files of any 2015 to 2021 EEO-1 historic reports downloaded from the EEO-1 filing platform between October 31, 2023, and December 4, 2023. After discarding these reports, filers can log into the EEO-1 filing platform and download new historic reports. In addition to notifying filers of this issue with historic reports, the email to filers suggests that filers can potentially receive additional time to file if they are unable to file by January 9, 2024, due to the historic report display issue. This is an interesting development in light of the hard January 9, 2024, deadline that the EEOC has previously set for the 2022 EEO-1 filings.
These emails are another sign of a difficult EEO-1 filing cycle that required filers to deal with several changes including a major change to how federal contractors were required to show their federal contractor status, the end of the Data Universal Numbering System (DUNS) numbers for federal contractors, a new requirement for federal contractors to use Unique Entity IDs (UEI), changes to the data upload file, changes to the formatting of the filing jurisdiction questions, changes to the formatting of the EEO-1 form itself, and the use of a new filing platform.
Failure to File Period
The deadline for filing the 2022 EEO-1 periods was December 5, 2023, but the 2022 EEO-1 filing site remains open for additional filings. The EEO-1 Instruction Booklet and the 2022 EEO-1 landing page both show that filings can be made until January 9, 2024. The landing page states that all filers who have not yet completed their 2022 filings “must do so as soon as possible and no later than Tuesday, January 9, 2024.” (Emphasis in original).
With respect to the December 5, 2023, 2022 EEO-1 deadline, the Instruction Booklet labels it as the “‘Published Due Date’” and the January 9, 2024, date as the “‘Failure to File’ deadline.” After December 5, 2023, the 2022 EEO-1 filing platform entered the “‘Failure to File’ phase.” Once a filer enters this phase it will receive a “‘Notice of Failure to File’” from the EEOC informing filers to submit and certify their data as soon as possible but no later than January 9, 2024. After the January 9, 2024, Failure to File deadline passes, the EEOC will not accept further filings. Filers that have not completed their filings by January 9, 2024, will be “out of compliance” with the EEO-1 filing requirement. The Instruction Booklet states that any employer “‘failing or refusing’” to file reports may be compelled to file reports by an order of a U.S. district court when applied for by EEOC.
Failure to File Notice Including Zombie Entities
During the Failure to File phase, prior EEO-1 filers will continue to receive notices from the EEOC concerning their failure to file. Some of these notices could be for entities that were involved in acquisitions, mergers, and/or spinoffs. These entities may no longer have employees and/or have already been absorbed into another entity that files EEO-1 reports for the employees from the acquired/merged entity. However, the EEO-1 filing accounts for these dormant companies to remain open. The EEOC expects entities that have open EEO-1 accounts to file EEO-1 reports, and these entities will be out of compliance if they do not file reports.
The EEOC provides methods to close accounts for entities that are no longer required to file EEO-1 reports. The primary tool is the EEO-1 acquisition, spinoff, or merger module used to report these events. Using this module, an employer can satisfy the 2022 EEO-1 filing requirement for affected entities and begin the process to close EEO-1 filing accounts for entities no longer required to file EEO-1 reports. The EEO-1 filing platform includes several resources, including a fact sheet, that explain how to use this module. Employers may want to consider reviewing failure to file notices to see if these notices involve dormant entities that should be reported to the EEOC through the acquisition, spinoff, or merger module.
EEO-1 filers may want to consider all steps needed to complete all remaining 2022 EEO-1 filings before January 9, 2024, in order to ensure all filings have been completed before the 2022 EEO-1 filing platform closes. While there may be limited exceptions to this deadline for those impacted by the OFS display issue for historical reports, those exceptions are expected to be limited.
Ogletree Deakins’ OFCCP Compliance, Government Contracting, and Reporting Practice Group will continue to monitor developments and will provide updates on the Government Contractors and OFCCP Compliance, Government Contracting, and Reporting blogs as additional information becomes available.
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