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Government Contractors & Other Large Employers: It’s That Quarter Again!

By the end of the third quarter of each year (September 30), the government requires certain federal contractors and other large employers to disclose demographic data about their workforce. Are you ready to file? 

What reports have to be filed? 

The federal government mandates that certain employers disclose the demographics of their workforce in two different annual reports: 

  • The U.S. Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contractor Compliance Programs (OFCCP) require an EEO-1 Employer Information Report, which summarizes gender and race/ethnicity demographics.
  • The U.S. Department of Labor Veteran’s Employment and Training service and the OFCCP require a VETS-4212 Veterans’ Employment Report (which this year replaces the prior VETS-100 and VETS-100A reports), which summarizes protected veteran demographics. 
Who has to file?
The EEO-1 report must be completed by:
  • Employers with 100 or more employees (including smaller affiliate companies where the entire enterprise employs 100 or more employees) who are also subject to Title VII of the Civil Rights Act of 1964.
  • Federal contractors with a prime contract or first-tier subcontract amounting to $50,000 or more and with 50 or more employees. 
By contrast the VETS-4212 applies to all federal contractors and subcontractors with a contract or subcontract in the amount of $100,000 or more. 
What has to be reported?
The EEO-1 and VETS-4212 reports both present a snapshot of the demographics of your workforce at a single point in time. You may use the data from any pay period during the quarter (July, August, or September), so long as you submit your report by the September 30 deadline.
In the EEO-1 report, you will disclose, for each of the ten EEO job categories, the number of male and the number of female employees in your workforce by racial/ethnic category.
In the VETS-4212 report, you will disclose, again for each EEO job category, the number of protected veterans and total number of employees in your workforce and the number of protected veterans and total number of employees hired in the past twelve months. This is a change from prior years, as the VETS-100 and VETS-100A forms required employers to identify the number of protected veterans who qualified under each separate category of “protected veteran” but did not require you to disclose the total number of all employees or all hires.
Filing organizations also should keep in mind that special disclosure rules apply to employers with multiple locations or affiliates.
Why should you care?
Accurate EEO-1 and VETS-4212 reports are important. The EEOC and OFCCP use the EEO-1 reports to support their civil rights enforcement activities. In particular, there has been a strong emphasis recently on using an employer’s EEO-1 data to support unlawful “steering” claims. For example, the government might argue that an employer’s EEO-1 data shows an unusually high concentration of women or minorities in the generally lower paying, lower opportunity Laborer job category, with underrepresentation in other job categories, suggesting to the government that the employer is unlawfully “steering” protected employees into lower jobs because of a bias against them.
For government contractors, accurate reporting is doubly important because the OFCCP’s audit-selection algorithm runs a statistical analysis on the EEO-1 data you submit, and employers whose data shows the greatest likelihood of systematic discrimination are most likely to be selected for a full audit of all of your affirmative-action obligations. And you definitely don’t want to do anything to get yourself onto that list!
The VETS-4212 also is of much more significance than the prior forms. Because the prior form often counted a single protected veteran multiple times (because one person often qualifies as more than one type of protected veteran) and data regarding the entire workforce was not reported, it was impossible for OFCCP to run any kind of meaningful statistical analysis. But the new form eliminates those obstacles and—coupled with the new protected veterans’ hiring benchmark—paves the way for the OFCCP to use the VETS-4212 to target government contractors for audit.
How should you prepare for your next filings?
Before filing your next EEO-1 and VETS-4212 reports, this might be a good time for you to review and clean up your data. When was the last time you reviewed the EEO job categories assigned to all of the positions in your workforce? Are all positions mapped to the correct job category? Do you have accurate gender and race/ethnicity data for all employees? Have you considered inviting your current employees to self-identify their protected veteran status?
If you have questions about any of these issues or are struggling to complete the EEO-1 report or the new VETS-4212 report, contact your affirmative action attorneys for further assistance.

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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