21 May STATE AND FEDERAL REPORTING REQUIREMENTS – LABOR AND EMPLOYMENT
Cedar Grove, New Jersey – May 21, 2019
The month of May has been quite busy on the labor and employment front, and New Jersey employers, both large and small, should be aware of new State and Federal reporting requirements.
FEDERAL EEO-1 REPORT
Following a decision by the United States District Court for the District of Columbia, the United States Equal Employment Opportunity Commission (“EEOC”) has confirmed that employers required to submit the annual Employer Information Report EEO-1 (“EEO-1 Report”) will be required to submit complete data for both 2017 and 2018 in 2019.
EEO-1 reporting requirements apply to large employers with 100 or more employees and certain federal contractors with 50 or more employees, including those with a federal contract of at least $50,000. Component 1 data, which has been consistently collected for years, includes the number of employees who work for the business, classified by 10 job categories, race, ethnicity, and sex. Component 2 data, which has yet to be collected, includes hours worked and wages (within 12 pay bands), which must be reported by race, ethnicity, and sex. Component 2 data is only required for employers with 100 or more employees.
With a new deadline looming, and the requirement to include retroactive data, employers should not wait to pull together the necessary data. Employers should be especially mindful of any changes to employee classifications that occur mid-year to ensure proper reporting of Component 2 data. Collecting and reporting Component 2 data is no simple task, and there is no question that the EEOC’s decision to require employers to report 2017 data only increases the compliance hurdle. But with the correct planning, covered employers should be able to meet their federal reporting obligations.
Important Dates for Covered Employers
May 31: 2018 Component 1 data due.
July 15: Component 2 portal should be available to employers.
Sept. 30: 2017 and 2018 Component 2 data due.
NEW JERSEY STATE CONTRACTOR REPORTING REQUIREMENTS
On the heels of the federal EEO-1 Report announcement and to implement the requirements of the Diane B. Allen Equal Pay Act, the New Jersey Department of Labor and Workforce Development (“Department of Labor”) published its proposed rules related to reporting race, ethnicity, sex, wage, and hours worked data. Unlike the federal EEO-1 Report, New Jersey’s reporting requirements apply to all employers that perform public work or have a qualifying service contract with the State or any agency or instrumentality of the State, irrespective of the number of employees. The reporting requirements differ slightly between public work contractors and service contractors, because public work contractors already provide certain data to the State.
The proposed regulations would require service contractors – including those with professional services contracts and contracts that are mixed goods and service contracts – to report race, ethnicity, sex, wages, and hours worked data in a nearly identical manner to the EEO-1 Report.
Employers would be required to choose a single pay period between October 1 and December 31 of the reporting year and report employees from that pay period by March 31 of the following year. For example, reporting year 2019 data, which includes employees identified from one pay period from October 1 to December 31, 2019, would be reported by March 31, 2020. Employers with multiple locations would have to complete a separate Report for the headquarters and any establishment with more than 50 employees. If there are multiple establishments with no more than 50 employees – exclusive of the headquarters for which a separate report would always be required – the employer may submit a consolidated report for all those locations.
Just as with the federal data, employees must be placed in one of ten job categories: (1) Executive/senior level officials and managers; (2) first/mid-level officials and managers; (3) professionals; (4) technicians; (5) sales workers; (6) administrative support workers; (7) craft workers; (8) operatives; (9) laborers and helpers; or (10) service workers. Employers must also use similar pay bands, which range from $19,239 and under to $208,000 and over.
For hours worked, employers would have to report the actual hours worked for non-exempt employees. For exempt employees, employers may estimate 40 hours per week for full-time employees and 20 hours per week for part-time employees. For sex, race, and ethnicity data, employers must give their employees the opportunity to self-identify before using records or observations to report the same.
Public Works Contractors
Under the proposed regulations, public work contractors would have to report the job title, occupational category, sex, race, and rate of total compensation for all employees.
Job title includes the classification as an apprentice, journeyman, foreman, deputy, assistant foreman, or the like. In contrast, occupational category would be the individual’s craft or trade, for example, laborer, carpenter, electrician, or mason.
Public works contractors already have to report hours worked and compensation on a weekly basis, and they would have to continue the current practice.
The Department of Labor has proposed forms that contractors can use to submit the required data to the State and covered employers should not wait until last minute to complete their internal assessment and external report. As early as October employers can begin compiling the necessary data, and employers are encouraged to do so.
While these new requirements may be quite burdensome for covered employers, compliance with the same is also a good opportunity for employers to ensure its employees are properly classified. As will be addressed in another article, the Department of Labor is cracking down on misclassification and is planning on enforcing punitive penalties against employers that misclassify employees. In these reports, most of the job categories are targeted to either exempt or non-exempt employees. For example, if an employer finds itself with employees for whom it needs to estimate hours worked in the laborer category, it may be the time to consider reclassifying those employees. While there may be exceptions, completing these reports may signal the need to consult with an attorney about proper employee classification.
To discuss how these requirements impact you, reach out to Nicole DeMuro.
*Nicole M. DeMuro, Of Counsel at O’Toole Scrivo, represents employers in a wide range of labor and employment matters. Before joining the firm, she worked as Senior Counsel to Governor Chris Christie and as a Deputy Attorney General specializing in labor and employment law. Nicole can be reached at email@example.com or 973.239.5700.
This article is for informational purposes only and not for the purpose of providing legal advice.
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