U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

                    + + + + +

                COMMISSION MEETING

                    + + + + +

                   OPEN SESSION

                    + + + + +

            WEDNESDAY, JANUARY 8, 2025

                    + + + + +

PRESENT:

CHARLOTTE A. BURROWS  Chair

JOCELYN SAMUELS       Vice Chair

ANDREA R. LUCAS       Commissioner

KALPANA KOTAGAL       Commissioner

            This transcript was produced from audio provided by the Equal Employment Opportunity Commission.

                     CONTENTS

                                              PAGE

Opening Remarks by Chair Charlotte Burrows.... 3

Presentation by Carol Miaskoff................. 5

Discussion of public comment on EEOC's

proposed revision to its existing

recordkeeping regulations at

29 CFR Part 1602 to add references

to the Pregnant Workers Fairness Act.... 15

              P-R-O-C-E-E-D-I-N-G-S

                                        10:00 a.m.

CHAIR BURROWS:  Good morning.  Welcome and thank you so much for joining us for the Equal Employment Opportunity Commission's first in-person public hearing in some time.  And happy New Year, first of 2025.

I'm so pleased to have all of you and our Commissioners here.  My thanks to the many EEOC staff who worked over the past couple weeks to prepare for today's hearing.  I'd especially like to thank our Executive Secretariat, our facility staff who manage the physical and logistical aspects of the hearing, the Office of Information Technology, and our interpreters.

Thanks also to the Office of Communications and Legislative Affairs, the Office of Legal Counsel, my own staff, and the many others at the agency who helped to make today's hearing possible.  Please take this opportunity to turn your cell phones off or to vibrate.  And in case of any emergency, there are exit doors to the right and left (inaudible).  Additionally, the restrooms are down the hall to the right and left (inaudible).

Today's hearing is being held pursuant to Section 709(c) of Title VII, the Civil Rights Act of 1964.  The purpose of the hearing is to hear comment on one item, the EEOC's notice of proposed rulemaking or NPRM to amend the language of our existing regulations to add references to the Pregnant Workers Fairness Act or PWFA.

The PWFA is the newest law enforced by the EEOC.  It requires a covered employer to provide a reasonable accommodation to a qualified employee for applicants' known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship.  The EEOC also enforces Title VII, the Americans with Disabilities Act of -- or ADA, the Genetic Information Nondiscrimination Act, or GINA, and many other nondiscrimination laws.

Title VII gives the EEOC the authority to issue regulations concerning employers' recordkeeping requirements to assist the EEOC in ensuring compliance with the law.  We use these records when we investigate charges and they help us determine whether there's reasonable cause for the discrimination that's occurred.  The EEOC issued recordkeeping regulations, and they extend not only to Title VII but also to the ADA and GINA.

When Congress passed the PWFA, it provided that Title VII enforcement mechanisms and procedures also apply to the PWFA.  That includes employers' recordkeeping requirements.  Accordingly, NPRM would simply add in references to the PWFA to our existing recordkeeping regulation and that is what (inaudible) about.  Before we begin, I will turn it over to the EEOC legal counsel, Carol Miaskoff, for a few preliminary remarks about the hearing.

1. MIASKOFF: Thank you, Madam Chair. Good morning, Commissioners.  Today, as you know, we're having a hearing about a notice of proposed rulemaking (inaudible) Pregnant Workers Fairness Act to four provisions (inaudible) hearing this gathering was not noticed (inaudible).

Therefore, during today's hearing, you must refrain from deliberations, determine a result of joint conduct or the disposition of an official (inaudible).  That said, of course you may ask questions about the NPRM which I will present momentarily.  To avoid potential Sunshine Act issues, we recommend that Commissioners refrain from (inaudible) opinion on the information presented.

The remarks might lead to further deliberation or if they could be perceived as an (inaudible).  We also recommend refraining from responding to comments offered by other Commissioners or offering proposals or suggestions to change.  Thank you very much for listening to the introduction.  Now let's get to the substance.

Okay.  So as you know, on November 21st, 2024, the Commission published a notice of proposed rulemaking and the notice of the hearing to announce the proposal that is the subject of today's discussions, adding references to the PWFA and to the EEOC's record requirements for all covered entities.  It was published in 89 Federal Register 9207 (inaudible).  In addition to announcing a public hearing, this notice asked the public to submit requests to testify about this proposal on December 23rd of 2024 in order to be assured of consideration.

I can let you know definitively that no requests to present have been received as of earlier this morning.  And we have both -- we'll check back through executive secretariat as well as the public comment portal.  The proposal also requested written comments on the proposal which will be due next Tuesday, January 21st, 2025 which is 60 days after publication of the NPRM.

And to be very specific, all this NPRM did was add the reference to the Pregnant Workers Fairness Act, four specific sections in the record (inaudible) rules, one section for each type of covered entity.  The process of recordkeeping, however, triggered two statutory requirements under different laws.  First, as the Chair referenced, PWFA incorporates the referenced Title VII's recordkeeping provision and Section 709(c).

This allows the EEOC to require recordkeeping pursuant to rulemaking and after a hearing as reasonable, necessary, and appropriate to carry out the purposes of the statute.  This is that rulemaking.  This is that hearing.

Title VII recordkeeping rules under Section 709(c) have been in place for private sector employers since 1967 and for other covered entities, i.e., apprenticeship programs, labor unions, and state or local governments since 1972 or 1973.  The substance of these recordkeeping rules has not changed since then.  The recordkeeping rules are identical and significantly, they do not mandate that covered entities generate or keep any particular employment record.

However, they do say that if a covered entity chooses to have employment records, they must keep those records for either one year, which is the time for private sector employers, or two years, depending on the type of covered (inaudible).  Specifically, these recordkeeping rules only have one place where they reference the specific statutes that are being enforced.  And that is in the section that refers specifically to retaining any records that are relevant to pending EEOC charges for enforcement action until the matter is resolved.

And what that means is that the general requirement that if you made records, you have to keep them is generally one year or two years.  And we have a separate provision that says if there are charges under these laws, regardless of that one or two years, you have to keep the records relevant to the charge until the matter is resolved.  All the NPRM does is add PWFA to the list of statutes for which you must keep records for these charges that enforce action.  That is all that it does.

The second law, the Paperwork Reduction Act, is triggered also.  And that's because anytime a federal agency requires a regulated entity to retain records -- not just to submit data or generate records but simply to retain records -- the agency must satisfy the requirements of the Paperwork Reduction Act.  Now I'll indulge myself and digress.

I can't help myself to say the Paperwork Reduction Act is in fact a generator of a lot of paperwork.  And now I will tell you how it generates paperwork.  First of all, it tells the agency that we have to calculate the burden of the recordkeeping retention requirement that we are imposing on regulated entities.

And we have to look at it both for the cost of implementing the recordkeeping requirement and for essentially running the recordkeeping requirement going forward.  In addition, we have to solicit public comments from regulated entities about the burden versus the utility of this requirement.  And when you're only subject to the Paperwork Reduction Act and you're not also doing a rulemaking, this actually involves two rounds of public comments, 60 days of comment and 30 days of comment that go to OMB (inaudible).

In this instance because we're doing a simultaneous rulemaking because of Title VII as well as Paperwork Reduction Act now says we are limited to one comment period of 60 days.  And people are invited to submit comments both to us and to OIRA's Paperwork Reduction Act branch to consider.  As I said, the written comment period closes next Tuesday, January 21st.

In terms of the burden analysis that we presented for this rule, we analyzed -- we looked at the burden for keeping charge records for PWFA charges for relevant records for PWFA enforcement actions for the length of the action.  And as the PRA instructs, we looked at the cost of implementing that and the cost of running that going forward.  Then we had to consider -- yeah, we had to consider that.

And we then separated out, we said, okay, so you're going to have two groups of employers.  You're going to have employers out there who have their systems in place or ready for Title VII, the ADA, and GINA.  And they're simply going to be adding any new PWFA, any unique PWFA records.

They have two of those systems.  And how much time is that going to cost?  The PWFA gives you a formula that, again, indulging myself, was created in the time of paper records that says, how long will it take to sort of create the record and the filing system?

And then what you do is you take that and you multiply that by the hourly rate of the person you think will be doing that function for you.  So what we did for implementing for existing employer -- and actually also for implementing for a new employer -- is we said 30 minutes.  And we looked at this in terms of 30 minutes to read the reg, to talk to whoever is doing this.

Now in reality, this is probably going to be incorporated in HRIS for most companies.  And it's very hard to calculate how.  They just buy an update.  If they have a subscription to their HRIS system, it will update to add.

We said, okay, half an hour to look at this, to read it, to talk about it, et cetera.  And we found an hourly rate from your labor statistics of about a little over 36 dollars an hour and then divide that by 2 because we're talking about 30 minutes.  And multiply that by the number of covered entities.

And that still comes out to a lot of money, like, 800,000 dollars or something.  So that the burden nationwide of adding this using the Paperwork Reduction Act formula.  Similarly, we looked at the burden for new employers who are starting up.

And they will basically start up with a system, with an HRIS system, or a filing system if they don't use the software, that will simply keep records for pending charges and enforcement actions for as long as it goes.  And they'll include PWFA in there along with Title VII (inaudible).

Again, we said 30 minutes.  This is a very -- this is not a scientific calculation because you don't know, are people setting off hard filing systems?  Are they simply pushing purchase to get an HRIS going?

We really don't know.  But we did the same calculation there for people -- for new companies setting up new systems.  We did not do a burden number for simply carrying this change forward because it's really almost impossible to calculate how -- it would essentially be how much is it to subscribe to the HRIS system that you're using?

And are you subscribing for service and periodic updates for both changes in law as well as software?  And how much of the change would be attributed to this change in law versus fixing a glitch in the software or adding more security?  So we did not do a burden there.

In terms of the utility, the positive side of the equation in PRA terms and in Title VII terms for the -- what is appropriate and necessary.  There are three words under Title VII.  It says when you have (inaudible), they were reasonable, necessary, and appropriate to carry out the purposes of the statute.  Reasonable, necessary, and appropriate.

We would certainly argue that maintaining employment records until an EEOC charge or litigation is resolved is reasonable, necessary, and appropriate for purposes of enforcing PWFA as well as our other statute.  So that is the analysis.  This is out for public comment under PRA.

PRA also very formulaically tells people what they want comments on.  And it's basically balancing burden and utility.  Under Title VII, people -- on the NPRM piece of this, people could comment on anything relevant to the proposal which is simply to add Pregnant Workers Fairness Act to the list of statutes and the recordkeeping rules for each type of (inaudible).  And that comment period does go through Tuesday.  And people are invited to submit their comments, both through regulations.gov, to us, and to OMB OIRA.

CHAIR BURROWS:  Thank you very much.  And before we begin questioning, I'll briefly explain the procedures for today's hearing.  It's being recorded, and there will be a verbatim transcript made of the proceedings.

The recording and the transcript will be posted on EEOC's website following the hearing.  And the presiding officer and (inaudible) of this hearing.  You'll have a round of questions from OLC on the proposal for members of the Commission, each having five minutes.

And while this hearing is open to the public, remarks and questions will not be taken from the audience unless they submitted an advanced request to do so by December 23rd, 2024, as you just heard described in the NPRM hearing notice.  However, I note that there is an additional opportunity to provide public comments.  The NPRM invites the public to do so in writing, and the instructions for that are in the NPRM.  I'll now we'll turn to the Vice Chair for any questions.

VICE CHAIR SAMUELS:  Thanks so much, Chair Burrows.  And thanks to OLC for your terrific work on this regulation and to the secretariat for keeping us on track with comment periods and the like.  Carol, you have very cogently explained how you calculated this kind of recordkeeping obligation.  But I'd like to know a little more about the benefit of adding (inaudible) to the statute, which we already require.  Why is it important that (inaudible). What are the benefits that you anticipate?

1. MIASKOFF: All right. Well, thank you, Vice Chair.  It's critical that we do that because when there -- these requirements will apply when there is a charge pending or litigation pending.  And when that is occurring, in order to enforce the statute, PWFA, we need to have -- we put in requests for records, discovery in litigation.  And the records are what will, in a significant part, tell the story of what happens.  So this information is really important to us to figure out if, indeed, the employer has violated the PWFA or complied with it.

VICE CHAIR SAMUELS:  Are there also benefits to having general recordkeeping requirement (inaudible) investigation so an employer can track (inaudible)?

1. MIASKOFF: Absolutely. I think having the general recordkeeping requirement, which is simply that if the employer chooses to have records, they must keep them for a year for private sector employers.  That, as you suggest, allows the employer to step back and look systematically at what is going on in its employment practices and to assess and be aware of compliance or perhaps areas where they need to work on training HR people and others.

VICE CHAIR SAMUELS:  Just to reiterate, I think you said this before: this is not a record making requirement; it's just a recordkeeping requirement.  And any format in which the records are dated is the format in which they could be maintained.  An employer doesn't have to create printed records or tandem to create electronic records.

1. MIASKOFF: None of those paperwork requirements. You just keep them the way you make them.

VICE CHAIR SAMUELS:  That's very helpful.  Is anything in this new NPRM change lawyers' obligations under Title VII, the ADA, GINA?

1. MIASKOFF: No, nothing in this NPRM changes employers' existing recordkeeping requirement under the laws or previously (inaudible).

VICE CHAIR SAMUELS:  Which employers have you noted have been complying with (inaudible)?

1. MIASKOFF: These recordkeeping requirements, as I said, went into effect 1967 for private sector employers and 1972 and '73 for apprenticeship programs, unions, and public sector.

VICE CHAIR SAMUELS:  So employers are deeply familiar --

1. MIASKOFF: Yes, they are.

VICE CHAIR SAMUELS:  -- with the scope of recordkeeping --

1. MIASKOFF: They are.

VICE CHAIR SAMUELS:  -- provisions and the nature of the process (inaudible)?

1. MIASKOFF: That's correct.

VICE CHAIR SAMUELS:  Thank you.  That's all I have.

CHAIR BURROWS:  Thank you.  And so we'll now turn to Commissioner Lucas.

COMMISSIONER LUCAS:  I have to turn my mic on.  Thank you for offering that explanation.  (inaudible) regulation (inaudible).

CHAIR BURROWS:  So we'll turn now to Commissioner Kotagal.

COMMISSIONER KOTAGAL:  Thanks so much, Carol.  Thanks for that helpful presentation and for all the work you're doing and the exec sec have done to get us to this point.  I wonder if you might elaborate a little bit about the good governance principles that support recordkeeping (inaudible)?

1. MIASKOFF: Absolutely. In terms of good governance, I guess a few things.  One, I would say that by doing this regulation and going through this process that makes every attempt to publicize this change to regulated entities.  We are trying to make people aware, straightforwardly aware, of what the recordkeeping requirements are.  So that I think is really the good governance piece of it.  We are communicating that in every way we can and very straightforward.

COMMISSIONER KOTAGAL:  I understand that employers are not required to (inaudible) any records to comply with our recordkeeping requirement.  But would you elaborate a little bit on what kinds of records employers might be keeping in the regular course that (inaudible)?

1. MIASKOFF: Sure. The kind of records that would be kept, for example, obviously job applications and records of who's hired, et cetera.  But in terms of the Pregnant Workers Fairness Act which concerns accommodating people who are experiencing pregnancy, childbirth related medical conditions, requests for accommodation, written requests for accommodation or other documentation that may have been generated when someone asks for an accommodation.  That would have to be kept as well as documentation that's made of the employer's decision about whether to grant it or why to grant it or why not to grant it or if they feel like it's an undue hardship, any indication of that.  That would -- if those are generated, those would be the kind of records that would be kept.

COMMISSIONER KOTAGAL:  You spoke to this a little bit.  But I'd love to hear your insight on how adding PWFA to our (inaudible).

1. MIASKOFF: I think the question about how it advances Congress' intent, I feel like that really goes very neatly to the standard in Title VII for recordkeeping, which is that recordkeeping can be required by regulation pursuant to hearing as is reasonable, necessary, and appropriate to carry out the purposes of the statute. So if the statute, the PWFA, is about providing accommodations for people experiencing pregnancy, childbirth related medical conditions, and therefore, related to charges or enforcement actions, it is reasonable, necessary, and appropriate for purpose of enforcing that law to have access to records showing exactly what the employer did in response to the law.

COMMISSIONER KOTAGAL: I have nothing further.

CHAIR BURROWS:  All right.  Thank you very much.  And I don't -- I just wanted to clarify one -- I don't really have questions.  But I did have one clarification, maybe.

Earlier you said something to the effect that the costs could amount to a lot of money.  But with respect to -- that meant nationwide.  And (inaudible) for the record to clarify that when you say nationwide, you're talking about every single employer subject to it, bound together.

1. MIASKOFF: Absolutely. And I should've been more clear about that.  But what I was saying is this includes every -- the reasonable estimate by the Bureau of Labor Statistics of every private sector employer throughout the country with 15 or more employees who is regulated by the PWFA.  It covers apprenticeship programs, local unions with referral halls, and state and local government employers.

That is a lot of employers when you add it all up.  That's the employer base for our entire nation.  So even when you're talking about a very minimal burden here, when you look at that and you look at the number of employers throughout the 50 states of the United States of America, that's a lot of employers.

CHAIR BURROWS:  Thank you.  That's helpful to understand.

So I have also no further questions.  I would simply say that I really, very much appreciate the work that our Office of Legal Counsel has done on this matter and with respect to both the regulation rulemaking and all of the public education efforts around the very important Pregnant Workers Fairness Act.

And so with respect to that, I believe that if there are -- I have no further questions.  I'm not -- we have no further business.  I believe that we can conclude.  I would like to say just as a point of privilege to give a very special thanks to you, our legal counsel, Carol Miaskoff, who is retiring after 32 years of dedicate service to the EEOC.

(Applause.)

CHAIR BURROWS:  And really Carol's remarkable leadership, her thoughtfulness, and her unwavering dedication to the agency's mission have been instrumental in advancing equal employment opportunity for workers across the United States throughout her extraordinary tenure in the Office of Legal Counsel.  And of course, we at the EEOC owe Carol a great debt of gratitude for service to the cause of civil rights, justice, and equality.  It's been an honor to work with you and you will be deeply missed.  And we wish you the very best in your next chapter.  So with that, this hearing is concluded.

(Whereupon, the above-entitled matter went off the record.)