Pay Survey’s Rollback Draws Fire Against White House

WASHINGTON (CN) — Fighting to keep employers from withholding vital data, two groups say in a federal complaint that recent interference by the Trump administration hurts their ability to close race and gender pay gaps.

The National Women’s Law Center and Labor Council for Latin American Advancement brought their Nov. 15 complaint in Washington less than three months after an abrupt policy reversal by the Office of Information and Regulatory Affairs, a subsidiary of the Office of Management and Budget.

Targeted by the office’s machinations were recent revisions to an employer survey put out by the U.S. Equal Employment Opportunity Commission.

Attorneys for the challengers at the Democracy Forward Foundation note that the EEOC adopted these changes as part of a six-year effort “to improve enforcement of federal laws prohibiting pay discrimination.”

In 2016 the EEOC made it so that its longstanding employer survey, known as the EEO-1, would start collecting W-2 earnings data for employees by sex, race, ethnicity and job category.

There is good reason for the government to collect such data, the complaint alleges, blaming “the persistence of race and gender pay gaps” in part on the dearth of comparative salary and wage information.

With about 60 percent of workers in the private sector reporting that they are either prohibited or discouraged from discussing their pay with their colleagues, the complaint says “employees face significant obstacles in gathering the information that would indicate they have experienced pay discrimination.”

“And given the absence of legal obligations to identify wage gaps and report employee pay data, employers lack incentives to undertake their own analysis that could proactively correct pay disparities,” the complaint continues.

The groups suing this week to enforce collection of the records accuse the Trump administration of changing the policy in violation of the Administrative Procedure Act.

In contrast to the six-year administrative process that led to addition of pay data in the EEOC survey, the challengers accuse the current administration of enforcing its stay unilaterally.

“OMB Defendants’ decision was made in secret and without inviting public comment, in contrast to the transparent, public, multiyear process utilized by the EEOC to create a well-developed and reasoned revision of the EEO-1 to collect pay data,” the complaint states.

When the Office of Information and Regulatory Affairs announced the Aug. 29 stay of the EEO-1 revisions, the 1.5-page memorandum by Administrator Neomi Rao cited concern that the data being sought “lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.”

The complaint filed Wednesday calls this justification “nonsensical in light of the underlying facts.”

“The Rao Memorandum provides virtually no analysis, and simply parrots regulatory standards,” the complaint states.

Defending the recordkeeping requirements, the challengers note that they were instituted based on “the EEOC ’s conclusion that collecting pay data is necessary to remedy persistent wage gaps correlated with sex, race, and ethnicity.”

“The administrative process shows that at every step the EEOC carefully considered how to maximize the utility of this collection and minimize its burden on employers, including through the full and effective use notice and comment procedures,” the complaint continues.

Neither the EEOC or the Office of Management and Budget responded to a request for comment.

The groups behind Wednesday’s lawsuit are represented by Javier Guzman of Democracy Forward.

“If it wasn’t clear before, it’s crystal clear now: women – and the families relying on women’s paychecks – are at the bottom of the Trump administration’s agenda,” Emily Martin, general counsel for the National Women’s Law Center, said in a statement on the suit. “By stopping the equal pay data collection, this administration has shown that its loyalties lie with corporate employers who want to hide pay discrimination under the rug. We will not allow this to go unchallenged.”

Hector Sanchez Barba, executive director of the Labor Council for Latin American Advancement, called Latin women “among the most adversely affected” by employment discrimination.

“Latinas are a growing force in the labor market but over a 40-year career will be paid over $1 million less than white, male workers — and the Trump administration’s decision makes it easier for this underpayment to go unchecked,” the complaint states.

The revision to the EEO-1 survey was not set to take effect until March 2018. It would have required all private employers with 100 or more employees, including federal contractors and subcontractors, to report summary pay data.

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