With the first six months of 2022 completed, this is a good time to review a busy government reporting season.
California Pay Data Filings
The 2022 California pay data filings marked the second year of this requirement for impacted employers. On the surface, these second-year filings appeared to be very similar to the inaugural 2020 filings with a slightly tweaked due date of April 1, 2022. However, beneath the surface, there were several differences. The most significant change was the requirement for filers to use a new filing platform. The new platform required prior filers to create login credentials and then link to their companies’ login credentials using information found only in the prior year’s California pay data filings. Once prior filers provided the required information from their 2020 California pay data reports, their filing platform accounts were populated with company information.
The updated filing system seems similar to other reporting platforms, such as the EEO-1 filing platform. Presumably, the new California pay data filing platform will retain company information for future filings and provide a way for filers to access prior years’ reports once logged into the platform. This increased functionality seems like a natural progression as California moves toward building a long-term approach to this reporting requirement. Another byproduct of a more robust filing platform is that the 2021 California pay data filings required filers to enter company information into the filing platform before uploading their pay data filings. This was a change from the inaugural filings in which all company information was entered into a spreadsheet that was uploaded to the filing platform. The new platform also allows filers to view their certified submissions, edit company information, and export copies of filed reports.
The California pay data landing page was also updated to provide an online method for responding to pay data notices from the California Department of Fair Employment and Housing (DFEH) and for submitting questions about the pay data filings to DFEH via an online form. Another 2022 update to the landing page provides pay data statistics gathered from the first year of California pay data filings. This review of the aggregated data from the 2020 California pay data filings breaks down the collected information by gender and race/ethnicity with respect to EEO categories and pay ranges. The page also includes an option to break down the 2020 pay data information by industry sector and by region. This resource could allow California employers to examine by industry and region how they compare to other employers.
One of the major changes for the 2021 EEO-1 filing cycle was the U.S. Equal Employment Opportunity Commission’s (EEOC) decision to change the reporting method for professional employer organizations (PEOs). This change means that PEOs are no longer allowed to include client employers within their EEO-1 filings. Companies that had previously been included within their PEO EEO-1 filings were required to create their own EEO-1 filing accounts. Another change was to complete the phasing out of the Type 6 EEO-1 report. This report was especially useful for employers with large numbers of establishments that had fewer than fifty employees. While the EEOC made it more difficult to use the Type 6 report during the 2020 reporting cycle, it completely ended the Type 6 report during the 2021 filing cycle. This means that employers with large numbers of locations that have fewer than fifty employees must now choose between building substantial data upload files or inputting possibly hundreds of Type 8 reports into the online filing system.
Other EEOC changes for 2022 included the phasing out of providing a phone number for the EEO-1 help desk and moving to a platform-based help desk messaging system. Once employers log into the filing platform, they can use this system to send help requests to the EEOC using a fill-in form with drop-down menus and a fillable message box. This messaging platform keeps track of the original request, EEOC replies, and subsequent filer communications with the EEOC. This new system has eliminated the occasional long waits on hold with the prior EEO-1 help desk phone line and provides users with written histories of their communications with the EEOC. The EEOC also increased the use of “self-service” functions, including reporting of mergers, acquisitions, and spinoffs. These self-service forms have allowed filers to complete tasks that were previously handled through emails to EEO-1 functional areas. For instance, while employers were previously required to send emails to the mergers and acquisition group to request assistance with mergers, the 2022 self-service form in certain circumstances has allowed for immediate handling of merger requests. This is a positive change from prior years because it has reduced delays and improved response times from the EEOC.
OFCCP Contractor Portal Certification
While the new federal contractor affirmative action program (AAP) certification requirement may not be considered a traditional government compliance reporting requirement, it earns an honorable mention for requiring federal contractors to master yet another governmental website that includes establishing login credentials and adding or editing work locations. On the U.S. Department of Labor’s Office of Federal Contract Compliance Programs’ (OFCCP) contractor portal, employers had through June 30, 2022, to certify the status of their AAPs. In comparison to the California pay data filing and EEO-1 reports, the OFCCP contractor portal requires federal contractors to input smaller amounts of data. This year, the contractor portal was focused on supply and service federal contractors only.
If the first six months of compliance reporting were not enough, impacted government contractors must file their 2022 VETS-4212 reports no later than September 30, 2022. The close of the 2022 VETS-4212 filing season will conclude the major government compliance filings for this year. Then the government compliance reporting focus will shift to 2023 with the expectation that the 2022 California pay data reports will be due by March 31, 2023, with the EEO-1 filing platform tentatively scheduled to open for filings in April 2023.
A bill pending in the California legislature may modify certain reporting obligations for employers with California workforces. Senate Bill No. 1162 passed in the state senate and is currently pending in the state assembly. The bill would require “a private employer that has 100 or more employees hired through labor contractors within the prior calendar year [to] submit a separate pay data report to the [DFEH]” covering those employees. The report would need to disclose the identity of the labor contractors supplying the employees. The bill also proposes to require employers to report the median and mean hourly rate for each job category broken down by race, ethnicity, and sex. The bill also proposes to require the DFEH to publicly report pay data beginning in 2025. The publication would phase in over a three-year period corresponding to employer size. The state assembly has until August 31, 2022, to pass this bill. If the bill passes, the governor has until September 30, 2022, to sign or veto the bill, or allow it to be enacted without being signed.
Ogletree Deakins will continue to monitor developments with respect to California’s and the federal government’s pay data and other compliance reporting requirements and will provide updates on the firm’s California, Affirmative Action/OFCCP, Government Contractors, and Pay Equity blogs. Important information for employers is also available via the firm’s webinar and podcast programs.